Statutes of Liberty

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

It has been a while since we’ve discussed the goings-on in our nation’s immigration courts. Gather around, gentle readers: We have a story to tell.

This past week, our office has had two immigration trials, which in immigration court are called individual or merits hearings. In a merits hearing, the Immigration Judge listens to testimony and argument, considers the evidence, and, in most cases, makes a decision from the bench. (Note that there is no right to a jury trial in immigration court.) This is true in all types of immigration cases before the court, including asylum cases and green card cases.

While we represent the immigrant client, the U.S. government is represented by attorneys at the Office of the Principal Legal Advisor (OPLA), which is part of the sub-agency Immigration and Customs Enforcement (ICE) within the Department of Homeland Security. The stories you are about to read highlight how important the OPLA attorney is, and how that attorney can make a big difference in the way a merits hearing unfolds.

First, we begin with James’s asylum hearing on Friday, February 10. His client is a former journalist from Ethiopia. She originally applied for asylum many years ago before the U.S. Citizenship and Immigration Services’ asylum office. That office did not approve her case and instead placed her in immigration court to let a judge decide the matter.

This case was one of the stronger asylum cases we have had in our office in recent memory. Additionally, the client is very well-spoken and handled questioning extremely well during all of her practice sessions. About a week before the hearing, James contacted the OPLA attorney assigned to the case to discuss, in advance of trial, whether we could narrow the issues in dispute. We routinely do this to see if we can save the Court and our client time — immigration court is a busy place, and we want to do our best to help make it work.

In James’s case, the OPLA attorney responded quickly to request some evidentiary exhibits to review; after reviewing them, she agreed to not contest the asylum claim. During the hearing, the judge only asked about ten minutes worth of questions and then agreed to the stipulated grant of asylum. After many years of stress and waiting, our client finally received asylum. Our entire office was overjoyed.

Doran’s trial went quite differently. Doran’s client was applying for a green card based on her marriage to a U.S. citizen. She originally came to the United States as the spouse of a different U.S. citizen but they divorced after about five years of marriage. Due to a paperwork foulup, her first green card, and therefore residency, was terminated, which is how she ended up in immigration court. The path out of immigration court was clear: she is married to a U.S. citizen, with several children together.

Just like James, Doran contacted OPLA to see if the issues could be narrowed before trial. She also offered to discuss any issues that the OPLA attorney had with the case. OPLA did not agree to stipulate, and so the case went to trial without a prior agreement.

At trial, the OPLA attorney conducted a vigorous cross-examination of Doran’s client concerning the validity of the client’s marriage with her current U.S. citizen husband. (They have been married for eight years and have four U.S. citizen children together, so there was plenty of material to examine there — plus, there was the prior marriage.)

The cross-examination took two hours. Doran’s client was asked, in detail, both about her previous marriage and about her current marriage; and about all prior immigration applications that were filed for  her.

In our view, the client did a good  job of answering these questions from the OPLA attorney. It isn’t easy to handle a cross-examination, especially through an interpreter, but we were pleased with her performance.

The purpose of this recitation is not to criticize the OPLA prosecutor — either in James’s trial or in Doran’s trial — but to highlight the extraordinary difference that the prosecutor makes, and the extraordinary power that the prosecutor has. Doran’s trial, which was scheduled for two hours, lasted four, and the trial is still not over; the judge had to adjourn the case to a date unknown.

As always, we welcome your comments and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Janice Chen., Esq. and Saran N. Cossman join The Law Office of James Montana PLLC!

You — yes, you, gentle reader — are part of our business! We rely on you to share the information we provide, and we hope that you will refer clients to our law practice — as indeed many of you already have done.

We’ve shared with you an insider’s view of the economics of our law practice, photos of Lawyers in Go-Karts, and sweet, sweet news about our new building. Now, we want to share more big news with you. Two new legal professionals have joined our practice: Janice I. Chen, Esq., and Sarah N. Cossman.

Janice Chen joins us from The Law Offices of Manuel Rivera, Esq., and Associates, where she distinguished herself as a litigator before the immigration courts. Janice brings huge new skills and competencies to our practice. Unlike our other lawyers — barred in Washington, D.C., New York, and Georgia, respectively — Janice is a member of the Virginia Bar, so we can now represent prospective Special Immigrant Juvenile applicants in Virginia State Courts. (We are very excited about this — helping children and teenagers is a big win for our practice.) Janice is also proficient in Mandarin, and so we will be able to welcome Mandarin-speaking clients in their own language.

Sarah Cossman is a student at American University Washington College of Law, and is not (yet) a licensed attorney. Her prior experience at the Capital Area Immigrant Rights Coalition and TRAC (an academic data tracker of immigration law — perhaps the gnarliest, dorkiest corner of our profession) positioned her well to help our clients, and she has already made important contributions as a researcher and legal assistant.

With Janice joining our office, we now have additional capacity to take on new immigration cases. Please feel free to make an appointment with her using this special link. Consultations at our office cost $200; if you hire us to represent you, we subtract that $200 from your bill.

Our office has a very old-fashioned pay and benefits policy. All employees are eligible for generous health insurance benefits, all employees instantly vest into our SIMPLE IRA with matching, and all salaried employees are eligible for four months of parental leave from Day One. We believe that these benefits help us to hire for the long term, and help our employees to do their very best for our clients.

Welcome, Janice and Sarah!

As always, we welcome your comments and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

All Presidential administrations struggle with unauthorized migration, and the Biden Administration is no exception.

The Biden administration has taken a new approach to stymie immigration via the southern border. This approach uses the classic “carrot and stick” to discouraging border crossers. The “stick” is increasing the use of Expedited Removal to discourage illegal border-crossing.

The “carrot” is increasing the use of Advance Parole to encourage migrants to choose legal pathways instead. In this explainer, we’ll provide some background on both of these aspects of the Biden Administration’s new approach.

The increased use of expedited removal — which some advocates have (in our view, correctly) described as reminiscent of Trump-era policy — is targeted at Cuban, Nicaraguan, and Haitian nationals, for now. Under plans announced this month, Mexico has agreed to accept up to 30,000 expelled migrants from those three countries, and any additional migrants from those three countries will be subject to expedited removal directly home.

Expedited removal allows the administration to deport migrants more quickly, because expedited removal proceedings — unlike ordinary removal proceedings — do not occur before an Immigration Judge; instead, a CBP or ICE officer typically issues an order of removal without a hearing.

What, then, are asylum seekers from Cuba, Haiti, and Nicaragua supposed to do? The Biden Administration’s answer is Parole.

Humanitarian parole is a longstanding tool in U.S. immigration law which has, traditionally, been used on a case-by-case basis to permit individuals to enter the United States for exceptional or emergent reasons, like emergency medical treatment.

Under the Biden administration, the use of parole has expanded — in a form reminiscent of Temporary Protected Status, or TPS — to embrace nationalities, rather than individuals.

The first program the Biden Administration announced was Uniting for Ukraine. That program allowed Ukrainians with a supporter in the United States to obtain parole, so that those approved under the program could come to the United States legally and work for two years. The primary purpose behind this program was to assist Ukrainians escape the Russian invasion.

More recently, the government announced a similar program for Venezuelans. Due to the long-term economic and political strife in Venezuela, many of its citizens have been fleeing to search for safety and security in the United States. Again, due to a major influx of Venezuelan nationals at the border, the government created a program like Uniting for Ukraine for Venezuelans.

As of January 6, 2023, the Biden Administration has opened similar programs for citizens of three more countries: Cuba, Haiti, and Nicaragua. Just like the other programs, the noncitizen wishing to come to the United States must have a supporter in the United States who is willing to provide financial support during the time period that the noncitizen is parole into the United States.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

USCIS is required by statute to re-evaluate its fees every two years.

Naturally, the fees haven’t changed for six years. Partially, that’s due to litigation — when the Trump Administration tried to increase fees massively (for, we thought, pretextual reasons), the federal courts said no.

The Biden Administration’s plan to increase fees is broadly distributed across several classes. In short, the fees are going to hit the following groups: businesses and individual green card applicants. According to the Biden Administration, extra fees imposed on businesses will go to fund asylum adjudication at the border.

What are the fee increases?

Everyone pays more, but especially businesses and green card applicants.

The big news for individuals is as follows:

• Citizenship application fees jump from $725 to $760 (a small hop).
• Green card application fees jump from $1,225 to $2,820 (a big leap!)

The big news for businesses is as follows:

• H-1B lottery registration costs go up  from $10 to $215.
• H-1B application fees increase from $460 to $1,380, including the new $600 asylum support surcharge.

Premium processing fees don’t change — at $2,500, costs stay flat — but, just like you experience shrinkflation at the grocery story, businesses will see service decline without a drop in price. Premium processing will now mean an answer from USCIS within 15 business days rather than 15 calendar days.

Does this agency deserve more money?

Maybe. We’re skeptical. We favor efficient and fair administration of the law, but USCIS has not shown itself to be an efficient steward of public funds.

Take a look at these processing times, helpfully provided by DHS’s own statistics arm.

Lost your green card? Sixteen months. It used to be four, within the memory of our oldest lawyer. Applying for a green card based on marriage to a U.S. citizen at the Baltimore Field Office? Four years. (In Virginia, it’s better — just a year and a half!)

USCIS’s budget has increased markedly over this time. Presidential administrations have come and gone. The Service still can’t get its work done efficiently.

These fees won’t go into effect for at least another sixty days, so don’t hurry to file an application before the time is right.

Questions about the new fees? Ask away. We appreciate questions and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

We have great news for the Ethiopian community here in Washington, D.C.: TPS Ethiopia has opened.

We know, from long experience, that it always makes sense to find a lawyer rather than applying for immigration benefits on your own. We also know that many people will end up applying for TPS-Ethiopia without benefit of counsel. Therefore, in this article, we want to provide information about the process of applying for TPS-Ethiopia. Please use this as intended: as a reference, not as a substitute for an attorney.

Who Can Apply

Ethiopian citizens who have been both continuously resident since October 20, 2022 and continuously physically present since December 12, 2022 (these are distinct concepts!) can apply for TPS.

Should you apply for TPS if you already have a green card? With rare exceptions: No.
Should you apply for TPS if you are already a naturalized American citizen? Absolutely not.
Should you apply for TPS  if you have a pending case in immigration court? Or have a prior removal order? Consult an attorney.

When to Apply

The application window opened on December 12, 2022 and ends of June 12, 2024. USCIS encourages applicants to apply as soon as possible within the application window. In our experience, this isn’t a matter in which seconds count; it’s best to put together your application with care. It is important to file before June 12, 2024, though, because late-filed TPS applications are frequently denied.

How to Apply

The instructions are 18 pages long. Follow them carefully.

In general, you’ll need to submit copies of documents showing your identity (e.g., a passport ID page), the date that you entered the United States (e.g., a copy of Form I-94), and evidence that you meet the continuous residence and physical presence requirements.

Think about the continuous residence and physical presence requirements this way: You’ve been accused of not being in the United States; how would you disprove the accusation? You’d submit evidence! Such evidence might include pay stubs, rent payment receipts, copies of your income tax returns for the relevant period, medical or school records, utility bills, and affidavits from credible witnesses.

When you apply for TPS, you can also request employment authorization. (You don’t have to — asking for employment authorization costs extra money; see the table below for how much.)

How Much To Pay

The current fees (which may change!) are as follows:

Want to apply for TPS-Ethiopia with our office? Let us know! You can call us anytime at (888) 389-8655. Questions about TPS-Ethiopia? Ask away. We appreciate questions and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

We hope that all of our readers had a wonderful Thanksgiving holiday!

In our last legal post before Thanksgiving, we discussed how federal litigation can help applicants get their languishing cases unstuck at USCIS or the Department of State. We recently got news that there may be a major class action lawsuit headed for USCIS’ desk.

A group called IMMpact Litigation is currently seeking plaintiffs who have had their Form I-601A, Application for Provisional Unlawful Presence Waiver, pending before USCIS for more than six months. The plan is for IMMpact Litigation, the American Immigration Lawyers Association (AILA), and the American Immigration Council to work together to file a class action lawsuit against USCIS for the unreasonable delay in processing I-601A cases.

First, some important background information. The Form I-601A is widely used and is important application for many immigrants.  This application is used for noncitizens who are currently in the United States who will later leave to seek an immigrant visa (green card) at a U.S. Embassy or Consulate abroad.

Normally, if someone has been in the United States 180 days and up to one year without a lawful immigration status, the departure would trigger a three-year bar to returning the United States. A departure after one year or more without lawful status triggers a ten-year bar to returning.

Congress largely considered family unity as a priority when drafting our immigration laws. The U.S. immigration authorities recognized that it would provide much more security for visa applicants currently in the United States to seek this waiver before departing for their visa interviews. That way, the applicant and their family members would be apart for much less time while the applicant travels for his or her interview abroad.

A couple of interesting things about this particular waiver: First, it is a discretionary benefit only available to applicants who can prove that their U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if they were forced to live apart or relocate to the applicant’s home country.

Note that having U.S. citizen or lawful permanent resident children does not allow a noncitizen to qualify for this waiver. Second, unlike many other immigration processes, this one does not allow the applicant to request any interim benefits like work authorization while waiting for a decision.

So why are these immigration organizations thinking about suing? In the past couple of years, the processing times have ballooned.  Only two USCIS service centers process these applications: the Nebraska Service Center and the Potomac Service Center — the latter, right here in Arlington, Virginia.

Cases are taking an average of 28 months at the Nebraska Service Center. At the Potomac Service Center, the average case is taking 37 months. (37 months ago, the COVID outbreak was restricted to Hubei and Wuhan, and no one here took the possibility of a pandemic seriously. 37 months is a long time!)

These horrendously long delays just keep getting longer, which causes more uncertainty to the families affected. Plus, the longer it takes, the longer the applicant doesn’t have a green card or any other interim benefit, which may be negatively impacting their families. Many applicants, including some of our own clients, are furious about these long processing times. Doran is especially excited because she has been handling I-601A cases her entire career.

Therefore, the idea is to file a class action lawsuit on behalf of essentially all applicants who have been waiting more than six months for a decision. Why a class action lawsuit? Because there are so many people affected that it would be absurd for each and every person to file their own individual lawsuits. A class action would, in theory, benefit anyone who fits into the class, or the specific, delineated group, as defined in the lawsuit.

An important note: if you or someone you know may qualify as a plaintiff, the deadline to register as a potential plaintiff is TOMORROW, Friday, December 9. Anyone who is interested should review IMMpact Immigration’s webpage on this topic.

We hope that this litigation moves forward and is successful in helping these applicants get out of immigration limbo. As always, we appreciate questions and will do our best to respond!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

One of the chief complaints we hear as immigration lawyers is that immigration processes take forever.

U.S. citizens who file a petition on behalf of their spouses are taking at least a year in most places. Many employment-based green card applicants are waiting at least two years to receive their green cards. And asylum? The average wait time for an interview in the D.C. area is about five years. Trust us; we hate it, too.

However, if you’re tired of waiting for a decision, there is a solution. Sue the government in federal court! Here’s the deal:

In many types of immigration cases, a statute or regulation dictates that the immigration authorities must make a decision on application within a certain period of time.  For example, Congress specifically stated in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 that petitions for juveniles that have been abused, abandoned, or neglected by one or both parents, must be adjudicated within 180 days.

Under the Administrative Procedure Act, or APA, Congress created the ability to sue an agency for failing to act when the agency is required to act, or when the action is unreasonably delayed or unlawfully withheld. A good example of a decision unlawfully withheld is a special immigrant juvenile petition that must be adjudicated in 180 days. However, you can also file an APA lawsuit regarding discretionary applications, like green card applications. Just because the immigration authorities have the discretion to approve or deny an application, it does not mean that the authorities can sit on the case forever.

Additionally, under the Mandamus Act, a lawsuit can be filed to compel an agency to act. In these cases, the plaintiff, or the person suing the agency, must show that (1) she has a clear right to the relief requested; (2) the agency has a clear duty to perform; and (3) there is no other adequate remedy available.

An important note: The goal of the lawsuit is to receive a decision, whether negative or positive. It is not to compel an approval. The only thing the judge can do is order the agency to take action in the pending immigration matter.

In the majority of cases, these lawsuits do not go all the way to a full trial. Usually, the government does not want to deal with the lawsuit, and instead will make a decision on the application or petition so that the case can be dismissed.

If you are tired of waiting around for USCIS, the Department of Labor, or the Department of State to make a decision in your case, we recommend that you speak with an experienced immigration attorney that handles these types of cases in federal court. Picking the right federal court in which to sue can be very tricky, and each court (and sometimes each judge) has their own specific rules that you must follow or else you risk having your case rejected. You also have to provide a copy of your complaint to many different offices, and failure to do so can also result in the case being dismissed.

As always, we welcome questions and comments. We’ll answer all we can!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

On Friday, October 21, the Department of Homeland Security announced that Ethiopia has been designated for Temporary Protected Status for 18 months.

Washington D.C. has the biggest Ethiopian community outside Africa, so this is huge news. We’re here to explain what it means. We know that Ethiopians in our area will be reading this, so we’re going to focus on facts and procedure here. If you’re curious about our editorial opinions, ask away in the comments.

First, a quick explainer on what TPS is, and how it works.

Temporary Protected Status, in theory, is a temporary measure meant to alleviate suffering in a country suffering from war or natural disaster. The U.S. Code permits the Attorney General (or, in modern practice, the Secretary of Homeland Security) to ‘designate’ countries which meet this description, and then provide temporary work permits, and temporary deportation protection, to nationals of the designated country who are in the United States on the date of the designation.

The process of applying for TPS is relatively simple. The applicant submits two applications: an application for TPS status on Form I-821, and, usually, an application for employment authorization on Form I-765. Fees vary depending on age. The Secretary of Homeland Security sets an ‘initial registration’ period for applicants, and then, if TPS is renewed, a ‘re-registration period.’ Miss these registration windows at your peril.

If you’re an Ethiopian who wants to apply for TPS, here’s what you need to know:

• TPS is temporary. Sometimes — rarely — TPS designation ends. (We covered the attempt to end TPS-El Salvador in these pages. That attempt is still going more than four years later!) So, although TPS is a good thing, it is a bad substitute for permanent status. If you have an asylum claim, don’t let it drop just because you have the ability to apply for TPS!
• The TPS application period for Ethiopia has not opened up yet. If a lawyer, an unethical ‘visa consultant,’ or ‘tax preparer’ (applicable soundtrack) offers to apply for you, do not pay them. TPS designation is a great benefit, but it also creates opportunities for scammers.
• Start gathering your documents. Your lawyer will want to see your Ethiopian passport or your birth certificate, plus evidence that you have been physically present in the United States on or about October 20, 2022. Evidence of physical presence includes:
  • Your 2022 tax returns (file them next year!)
  • Employment records, if you have them.
  • Rent receipts
  • School records for you or your children
  • Medical records concerning treatment for you or your children
  • Religious records describing your attendance at a place of worship
  • Other documentary evidence which shows that you live here. Your lawyer can help you find more.
• Put money aside. You can expect USCIS to charge up to $545 for your initial application.
• Make a plan. Find a trusted place to apply for TPS after the initial registration period opens.

Once the application windows opens, our law firm will be delighted to help Ethiopians who want to apply for TPS. You can call us at 888-389-8655, or make an appointment via Calendly, here. But we know that, with hundreds of thousands of Ethiopians in the area, handling all of these cases is going to be a team effort. In that spirit, here are two other trustworthy local partners for Ethiopians who need help applying for TPS.

The Ethiopian Community Development Council

ECDC is located right at 901 S. Highland Street on the Columbia Pike Corridor, and has been a voice for Ethiopians in our area for almost thirty years. We’ve presented on immigration law at ECDC — they’re great folks.

Catholic Charities of the Diocese of Arlington — Hogar Immigrant Services

Catholic Charities of the Diocese of Arlington is an excellent non-profit legal services center. They can handle your TPS application for a modest fee, and they’re wonderful people.

As always, we welcome questions and comments. We’ll answer all we can!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The Biden Administration has announced a new humanitarian form of relief.

The program, as yet unnamed, closely tracks the “Uniting for Ukraine” program. This time, the program sets out to help Venezuelans leave Venezuela and come to the United States legally.

Similar to the Uniting for Ukraine, up to 24,000 Venezuelans with sponsors living in the United States will be permitted to apply for parole. Parole is a special travel document issued to noncitizens who are coming to the United States for humanitarian reasons. Venezuelans who qualify and who are approved will be able to travel the United States by air, temporarily live in the United States, and apply for work authorization.

To qualify, the Venezuelan national must have a sponsor in the United States who is willing to sign a contract called an Affidavit of Support. This contract shows the U.S. government that the individual coming to the United States will have adequate financial and other support.

Additionally, the individual must go through a series of national security and public safety screenings to ensure that he or she does not pose a threat to the United States or the public. Finally, the individual must obtain all U.S.-required vaccinations.

However, not all Venezuelans will qualify. A Venezuelan national will be disqualified if he or she has (1) been ordered removed (deported) from the United States in the last five years; (2) crossed a U.S. border illegally after the date of announcement, October 12; (3) irregularly entered Mexico or Panama after October 12; (4) is a permanent resident or dual national of any other country other than Venezuela; (5) has refugee status in any other country; or (6) has not complied with vaccination or other public health requirements.

Further, this program also states that Venezuelans who attempt to cross a U.S. border illegally will be subject to Title 42 expulsion. As we previously explained, Title 42 of the U.S. Code continues to be used to expel noncitizens from the United States under the guise of protecting public health.

While we certainly approve of the new pathway to enter the United States legally, the continued use of Title 42 to expel noncitizens puts asylum seekers at risk. Some may be in so much danger that waiting to go through all of the screening and other procedures under the parole program will not be possible; escape and traveling by land may be the only option.

We hope this program will be a success, similar to Uniting for Ukraine, but we are also concerned about the Biden Administration’s continued (probably pretextual) use of Title 42 to expel asylum seekers.

As always, we welcome questions and comments.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Though the mills of God grind slowly; Yet they grind exceeding small; Though with patience He stands waiting, With exactness grinds He all.

The federal courts grind very slowly, but they grind exceeding small. The DACA program is about to be shuffled into a very large set of grinding wheels before the Fifth Circuit, and the smart money suggests that it might be turned into powder.

We’re here to explain how we got here, what the Biden Administration is trying to do about it, and what might happen next.

How did we get here?

In 2015, twenty-six states sued the Obama administration in an attempt to stop an expansion of DACA. That litigation, before U.S. Federal District Court Judge Andrew Hanen, stopped the planned expansion of DACA. During the pendency of that litigation, Donald Trump was elected President of the United States, and the Trump administration began making plans to rescind DACA, which would have mooted the case before Judge Hanen.

The Trump Administration’s attempt to rescind DACA failed, thanks to sloppy regulatory work by the Administration, which Chief Justice Roberts red-penciled with gusto in the Regents decision. (We covered that failure in these pages.) The Regents decision prevented the rescission of DACA, thereby un-mooting (as it were) the question of DACA’s constitutionality before Judge Hanen.

The litigants hostile to DACA therefore re-raised the question of DACA’s constitutionality before Judge Hanen. On July 16, 2021, Judge Hanen issued an order which stopped just short of rescinding DACA.

In a lengthy opinion, Judge Hanen described the reasons why (1) in his view, the promulgation of DACA was illegal, and (2) therefore the plaintiffs should prevail, but (3) stopped short of vacating DACA entirely, because (4) Judge Hanen expected the question to be re-examined on appeal.

Judge Hanen was right: the question was re-examined on appeal, before the Fifth Circuit Court of Appeals. A three-judge panel threw substantial judicial shade (“I’m just surprised that your lead case isn’t even in your brief”) on the arguments presented against Judge Hanen’s order.

The Fifth Circuit is expected to issue a ruling in the coming days. Judge Hanen’s order is likely to be upheld. That is how we got here.

What is the Biden Administration trying to do about it?

According to news reports, the Biden Administration is preparing to issue orders to ICE to de-prioritize deporting DACA recipients, in the event of a loss before the Fifth Circuit.

By doing this, the Biden administration would be reasserting its prosecutorial prerogatives in a way that would be more difficult for the courts to block. As both Judge Hanen and Justice Roberts emphasized in their respective opinions, DACA has two components – the discretion not to prosecute, and the grant of benefits – chiefly, employment authorization – consequent on that decision not to prosecute. The Biden administration is likely working to preserve the first of those two components in the event that the second component is removed from play.

What might happen next?

We have no crystal ball, but we predict the following.

• Judge Hanen’s summary judgment order will be upheld by the Fifth Circuit Panel.
• A request for en banc rehearing will immediately follow to the entire Fifth Circuit.
• No matter what the outcome of that en banc rehearing is, the losing side will file a petition for certiorari before the Supreme Court.
• Justice Roberts’ fine head of hair will increasingly resemble Henry Wadsworth Longfellow as this litigation rumbles on.

We’re here to answer all questions, major and minor. Ask them in the Comments. We’d love to hear from you.