Tag Archives: discretion

What Might Executive Action on Immigration Look Like?

26 Aug

As Facebook is crowded with pictures of kids going back to school, we must face the inevitable end of summer.  However, for immigrants, it is possible that the end of summer will bring long-awaited administrative relief from the Obama administration.  In June, President Obama went to the Rose Garden to state that, in the absence of legislation from Congress, he was going to use his executive power to address the harshness of U.S. immigration laws.  He stated that he instructed Secretary of Homeland Security Jeh Johnson to present recommendations for changes that the administration could make to existing interpretations of immigration law that would ameliorate the inhumane consequences of current immigration policy.  The Secretary was instructed to produce his recommendations and plan by the end of summer.  With the President returning from vacation soon and the traditional end of summer holiday of Labor Day approaching, expectations are sky high that the President will announce meaningful administrative actions in the coming weeks.  Washington is awash in rumors, speculation, leaks, and hopes as to what the nature of immigration relief might look like.  In this blog, we take a look at some of the common possibilities that keep popping up in reports.  We have written in the past about steps that the President could take to make U.S. immigration laws less harsh.  This post is about those measures that have been commonly reported in the media.

  • Parole-in-place.  This would be the most ambitious use of presidential authority.
    • WHAT IT IS: The Immigration & Nationality Act gives the administration the ability to parole any immigrant into the U.S. if the administration determines that it would be in the national interest.  Ordinarily, parole is granted to allow someone to enter the U.S. from abroad.  However, parole-in-place is a mechanism to parole those already in the U.S. who have not been admitted, such as those who entered unlawfully.
    • WHAT IT WOULD DO:  By paroling those who entered illegally, parole-in-place would have the effect of making them eligible for adjustment of status to permanent residence based upon the petition of an immediate relative, such as a U.S. citizen spouse or a child over 21.
    • WHO IT WOULD HELP: Those who entered unlawfully and have close U.S. citizen family ties.  This could be more expansive than those who can benefit from the provisional waiver as the provisional waiver is not available to those who are inadmissible on criminal grounds or fraud grounds.  Conceivably, parole in place would allow immigrants to seek adjustment of status with the opportunity to apply for all of the waivers that are available to other adjustment applicants.
  • Deferred Action.   Conventional wisdom is that the President will utilize the deferred action method used for young people in 2012 which would provide no stable or durable status, but would provide a reprieve from removal and the ability to obtain employment authorization.
      • WHAT IT IS: in June 2012, the President created Deferred Action for Childhood Arrivals (DACA), which formalized a policy that the government was not interested in seeking the removal of young people who entered as children, stayed in school, and, generally, avoided trouble.  The President could expand the Deferred Action program to include other favored groups, such as the parents of U.S. citizen or the parents of DACA recipients.
      • WHAT IT WOULD DO: By granting deferred action, the administration would be formally recognizing that the individual is not a priority for removal and would not be sought for removal.  Deferred action comes with work permits, allowing individuals to live without fear of removal, to work legally, obtain social security numbers and driver’s licenses.
      • WHO IT WOULD HELP: This is hard to say.  The administration could create a class of individuals who would qualify for expanded deferred action.  There is general legal consensus that he may not grant deferred action to all undocumented individuals. Commonly discussed potential classes include the parents of U.S. citizens and the parents of DACA grantees.  Another broad class would be deferred action for those immigrants who would benefit under the immigration reform bill passed by the Senate in 2013.   It is likely that, like DACA, any deferred action grant would have eligibility requirements relating to length of time in the U.S, work history, an the lack of a criminal record.Deferred Action.  The President could simply expand Deferred Action beyond the DREAMers.  He could identify classes of individuals who the administration identifies as low priorities for removal from the U.S.
  • Recapture of visa numbers.  This is among proposals favored by the business community.  It would not necessarily apply to individuals without status, but would help fix the extraordinary backlog in employment-based visas.  Some individuals do fall out of status waiting for their spot in the backlog to become available to them.
    • WHAT IT IS: The Immigration & Nationality Act makes a limited number of visas (green cards) available every year and divides them among various categories.  Sometimes, because of the way the visas are allocated, many of those visas go unused every year.  This contributes to horrendous backlogs that hurt employers’ ability to retain key personnel.
    • WHAT IT WOULD DO: By changing the way visas are counted and allocated, this change would shorten lines for visas in the employment-based categories, shortening the time it takes for a foreign employee to obtain residence.
    • WHO IT WOULD HELP: Employment-based immigrants, their families, and their employers.  Reduction in the amount of time necessary to sponsor an immigrant through work could help many people who could seek residence through employment and fall out of status while waiting in the backlog.
  • Work authorization for H-4 Visa Holders.  This is another of the priorities for the business community.
    • WHAT IT IS: Individuals admitted in H-4 status are the spouses and children under 21 of H-1B visa holders, who may enter the U.S. to work for a U.S. employer in a professional capacity for up to six years.  Under current law, an individual admitted into the U.S. in H-4 status is not allowed to accept employment in the U.S.
    • WHAT IT WOULD DO: Administrative change could make H-4 visa holders eligible to apply for employment authorization.  Since the Immigration & nationality Act does not prohibit such employment authorization, regulatory change could create a category to allow H-4s to work.  There is precedent for this as changes to the law allowed L-2 visa holders, the spouse and children under 21 of L-1 intracompany transferees to obtain employment authorization.
    • WHO IT WOULD HELP: The spouses and children of H-1B visa holders and their families.  Businesses want this change because international candidates sometimes turn down offers to work in the U.S. because their spouse can not work.

Executive action seems all but assured.  The questions is not “if,” but “exactly what” and “when.”  The President has waited far too long to take this actions.  Millions have suffered in a cynical attempt to pacify the House GOP and enforcement-lust.  The President has returned from vacation and it is time for everyone to get back to the important work of addressing the colossal failure of U.S. immigration law and the even more contemptible failure of Congress to deal with it.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

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The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.