On Tuesday, August 26, America’s Voice hosted a panel of immigration law experts who discussed options for administrative relief and executive action that President Obama might be considering. Law professors and authorities on immigration law discussed the legality of potential administrative relief and executive action for American families and businesses on a reporter conference call, providing possible options that the administration may be considering, background on legal precedent, and guidance on how only a permanent legislative solution can fundamentally fix the country’s broken immigration system.
The following is a general overview of the points they made:
David Leopold, Past President and Past General Counsel, American Immigration Lawyers Association:
The constitutional & statutory basis for deferred action that would apply to DACA (Deferred Action for Childhood Arrivals) and other categories:
- On the constitutional root of deferred action: it’s within the President’s responsibility to faithfully execute the law as set forth in the Constitution. Within that responsibility is the power to set enforcement priorities - i.e. how best to spend the limited resources at the government’s disposal in terms of enforcing that law.
- Courts have generally given the President unfettered discretion in order to enforce the law according to the priorities they set. That’s prosecutorial discretion.
- The statutory basis for deferred action: Congress grants the President the authority to administer and enforce immigration law. Per Leopold, “the whole concept of the immigration code as written by Congress over the years gives the executive relatively unfettered discretion in many areas” to enforce the law. The courts over the years have specifically referred to deferred action as a form of relief, and have repeatedly recognized the existence of deferred action and the President’s authority to grant it, pursuant to our priorities.
In fact, past presidents have all made use of executive action, utilizing categorical grants and individual grants dating back decades, including Presidents Kennedy, Carter, George H.W. Bush, and Clinton. In sum, the Constitution, the statutes, the court precedents, and the administrative guidance that’s all been out there in the last 20-plus years shows us that this is firmly embedded in the law.
Stephen Legomsky, The John S. Lehmann University Professor, Washington University School of Law, and former Chief Counsel of USCIS, Department of Homeland Security:
Professor Legomsky, who was part of the team at DHS who worked out the details of DACA:
“There’s no question at all about the legality of deferred action itself: it’s just one form of prosecutorial discretion, which is standard practice for almost every law enforcement agency in the U.S. The theory: when Congress knowingly gives DHS only enough resources to go after a tiny percentage of the undocumented population, then obviously Congress intended for the Administration to formulate priorities: it has no choice. That’s what deferred action does: it prioritizes resources.
The concept pre-dated this administration, and the various immigration agencies have used deferred action for decades. With regard to DACA specifically being a permissible use of deferred action:
- It’s always been general agency guidance as to the factors officers are supposed to apply when they decide on individual requests for deferred action.
- As early as 1970s, the former INS laid out general factors that should guide these decisions, specifically including age, length of time in U.S., and whether there’s a criminal history.
The DACA instructions make crystal clear that they’re just guidelines, and that officers must still evaluate each case with regard to being a permissible use. So what’s different about DACA?
- The way someone requests it (by both submitting documents + paying a processing fee): but that still doesn’t affect the legal standing. It just makes sense from an efficiency standpoint due to the larger numbers.
- Why affirmatively tell people they can stay, and then issue work permits? To get people out of the shadows and be able to run background checks on them - it helps ensure that employers play by the rules. Congress has authorized DHS to grant work permits, and that authorization pre-dates this administration.
Cristina Rodriguez, Yale Law School; formerly Office of Legal Counsel, Department of Justice:
Here are two potential ways in which the Administration could use prosecutorial discretion to grant more relief - by expanding DACA, and by expanding on parole in place.
A decision to halt all deportations would most likely be beyond the President’s authority - so how broadly can the President extend the categories of people to whom relief is granted in the form that it has taken with DACA, and still stay on the side of the spectrum that’s consistent with his duties to take care that the laws are faithfully executed?
Again, this is somewhat of an issue due to resource limitations: prosecutorial discretion is justified primarily, though not exclusively, by the fact that Congress simply doesn’t delegate/appropriate enough resources to the executive to fully enforce the law.
Many of the categories for expanded relief within the public debate would likely fit well within the prioritization that the President has. Some likely potential candidate categories might include spouses and parents of U.S. citizen children, and parents or other relatives of DACA recipients.
- Potential limitations: (1) Congress can and in the past has responded to efforts to enact legislation that would limit the President’s authority to expand categories. (2) It’s possible to disagree with the President’s authority to grant work authorizations - which is something separate from deferred action.
EXPANDING PAROLE IN PLACE
The Immigration and Nationality Act gives the President authority to parole individuals into the United States on a case-by-case basis, for urgent humanitarian reasons, or for significant public benefit; it’s currently been exercised for family members of active-duty service members. It’s generally intended to be granted sparingly, and in the past, when the President has exercised executive authority in a categorical rather than an individual manner, Congress can and has responded - that’s something the Administration will have to take into consideration.
Bo Cooper, Former General Counsel of the Immigration and Naturalization Service; Adjunct Professor at American University, Washington College of Law; Partner at Fragomen, Del Rey, Bernsen & Loewy:
The immigration statute is designed to serve a number of national interests, and one of those is to maximize opportunities for our country to attract intellectual and professional talent from around the world. This is an aspect of the immigration policy spectrum where there’s likewise a great deal of executive branch authority to make policy reforms and to address some of the negative consequences that our country has faced due to Congressional inaction without the need for additional legislation.
The core problem has to do with the alignment between the supply of visas Congress has made available for professional skills, and the demand of the U.S. economy. On H-1B side, supply is so out of alignment with the demand that every April 1st we see a free-for-all for the available visas. On the green card side, the mismatch between supply and demand is just as acute; many professionals may wait for over a decade to enter our workforce permanently.
What can the executive branch do? It can’t change those limits - only Congress can - but it can take steps to limit the damage:
On the H-1B and green card side:
- The executive branch could change the way it calculates those limits with respect to the spouses and minor children of principal beneficiaries to these immigrant visa petitions. Right now and for decades, the executive brand has considered those dependent family members to count against those limits, but the statutes aren’t clear in any way, and Congress hasn’t given a clarifying answer. If properly enacted through regulation, that change would make massive inroads in dealing with the consequences of the backlog. It would also benefit not just those on the employment-based side, but those on the family-based side.
- If the Administration recaptured visas that went to waste due to disuse in earlier years. The Administration has always understood visas that don’t get issued - that were authorized by Congress but didn’t get issued - to expire at the end of the year in which they were issued. That’s resulted in a huge waste due just to processing - the Administration has estimated that potentially several hundred thousand visas are available for recapture.
- The Administration could take steps to deal with the consequences for people who’ve been forced to sit for 10 years in this backlog (such as work authorization, be granted parole in place, or to change employers) - this is something the agencies already do.
These and other steps available would make significant progress, but wouldn’t go anywhere near correcting problems faced due to the absence of legislative reform.
HELP PASS IMMIGRATION REFORM