Thursday, November 20, 2014

President Obama’s Immigration Announcement Will Be Legal, and Includes an Implicit Enforcement Mechanism by Carrie Rosenbaum


Carrie Rosenbaum is a professor of immigration law at Golden Gate University School of Law and an immigration attorney in private practice.

President Obama’s impending immigration executive action will be legal and within his power. Tomorrow evening he will likely order temporary deferral of deportation for certain qualifying individuals, and eliminate Secure Communities. Deferred action is a form of prosecutorial discretion where an executive officer, here the president provides direction regarding efficient use of limited resources. Deferred action is not legalization or amnesty.

The president cannot provide legal resident status for unauthorized immigrants. He must however, use his discretion to set priorities for the Department of Homeland Security (DHS). Congress has in fact created a system that relies heavily on prosecutorial discretion encompassing both refraining from acting on enforcement, and providing discretionary remedies. Thus even if deferred action is characterized affirmatively as a remedy, it is within the president’s prosecutorial discretion powers.

History and the Constitution indicate that the president can institute a new executive order, similar to DACA in 2012. The Constitution supports such actions, and the courts have not disagreed. Congress has also established the DHS’s ability to set enforcement priorities through the Immigration and Nationality Act (INA). Their implicit acknowledgement of prosecutorial discretion is evidenced through their necessarily limited immigration enforcement appropriations.

Since 1956 presidents have issued 39 orders for temporary immigration relief. Even if the scope here is larger than previous actions that fact will not change the order from legal to illegal from a constitutional perspective or otherwise.

Expanded deferred action and the end of Secure Communities would help ensure that immigration enforcement is carried out in a way that is consistent with DHS’s stated priority of focusing on serious and dangerous criminals. The disproportionately large number of non-priority deportees resulting from Secure Communities revealed the lack of compliance with stated priorities. When President Obama ends Secure Communities or expands deferred action he will merely be definitively articulating what he has already said as far as who should be deported.

One critical issue that has yet to be addressed is the fact that deferred action would not just be a gift of reprieve from removal, but is an enforcement tool because anytime an individual applies for an immigration benefit (deferred action, work permits, etc.) they are subject to extensive background checks. By bringing individuals out of the shadows we are not just doing them and their families a favor, we are increasing the efficiency and effectiveness of identifying the few who truly might pose a threat to national security.

What about those who suggest deporting as many as possible instead of granting a reprieve? Congress’ appropriations only create the ability to deport about 400,000 annually. Even for the sake of argument, if all of the 11 million unauthorized immigrants currently present lacked a legal right to remain, it has been estimated that legal and procedural costs of a massive deportation would be in the hundreds of billions of dollars, costing thousands annually to individual taxpayers, and causing significant losses to other programs. Moreover, the result would be devastating not only to U.S. citizen family members and communities, but to the U.S. economy.

Extending deferred action will not open the floodgates. DACA in 2012 did not result in a measurable increase in unauthorized migration and the recent influx of women and their children fleeing violence in Central America is totally unrelated to deferred action. As is well documented, what fundamentally drives migration is economics and unlivable conditions in one’s home country.

There is no quick fix to curbing unauthorized migration. Helping to support increasing stability and economic development in sending countries would do more to decrease the migration drive than any number of costly fences, walls, or detention facilities. Until the debate is shifted to focus on the root causes of migration, no immigration reform measures will cease the flows, which we both need, and implicitly invite. It is important to remember that leaving one’s home is not something that most people want to do, but instead is often a necessity to protect or provide for their families. Extending a reprieve from deportation to adults and ending Secure Communities is lawful and logical and will hopefully encourage Congress to follow suit.

UPDATE (Nov. 22, 2014);  Rosenbaum offers her thoughts on the Obama package in this Sacramento Bee op/ed.

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