Can Obama Grant Deferred Action to DREAMERs as a Group? Experts Say Yes

President Obama has suggested that he does not have the administrative authority to grant broad deferred action to DREAM Act students. In a memorandum today, legal experts think he does:

To:       Interested Parties

From:  Jeanne Butterfield, Esq.

Former Executive Director, American Immigration Lawyers Association

Bo Cooper, Esq.
Former INS General Counsel

            Marshall Fitz, Esq.
            Director of Immigration Policy, Center for American Progress

            Benjamin Johnson, Esq.
            Executive Director, American Immigration Council

            Paul Virtue, Esq.
            Former INS General Counsel

            Crystal Williams, Esq.
           Executive Director, American Immigration Lawyers Association

Re:      Executive Branch Authority Regarding Implementation of Immigration Laws and Policies

The role of executive branch authority with respect to the implementation of immigration laws and policies has been well documented.  This memorandum offers a short overview of the scope of executive branch authority and provides examples of its use in the immigration context.

Exercising Executive Authority

The authority of law enforcement agencies to exercise discretion in deciding what cases to investigate and prosecute under existing civil and criminal law, including immigration law, is  fundamental to the American legal system.   Every prosecutor and police officer in the nation makes daily decisions about how to allocate enforcement resources, based on judgments about which cases are the most egregious, which cases have the strongest evidence, which cases should be settled and which should be brought forward to trial. 

. . .
Deferred action determinations are made on a case-by-case basis, but eligibility for such discretionary relief can be extended to individuals based on their membership in a discrete class.  For example, in June 2009, the Secretary of DHS granted deferred action to individuals who fell in to the following class: widows of U.S. citizens who were unable to adjust their status due to a statutory restriction (related to duration of marriage at time of sponsor’s death). Congress subsequently enacted a change in the law to address this particular problem. Read the entire memo here...

bh