Friday, November 21, 2014

President Obama's Immigration Move: A Courageous Stance, Beyond His Authority, or Too Little Too Late?

 

President Obama made a major immigration speech last night (see the transcript) and announced  changes to current immigration policy. Early on in the speech, the President emphasized that he hopes to continue to work with  Congress to enact immigration reform but, in the meantime, was taking modest action within his constitutional and statutory authority. 

The White House description of the plan can be found here.  While Republicans loudly scream foul, immigration analyst Ted Alden sees the changes as demonstrating the limits on the executive powers to solve the current problems with the American immigration system. 

After the speech, the Department of Homeland Security posted on its website the following details on the program, which is entitled "Fixing Our Broken Immigration System Through Executive Action - Key Facts."  The webpage also includes links for further details on each of the initiatives:

"The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system."

Executive Actions

Strengthen Border Security

DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border. This new plan will employ DHS assets in a strategic and coordinated way to provide effective enforcement of our laws and interdict individuals seeking to illegally across land, sea, and air. To accomplish this, DHS is commissioning three task forces of various law enforcement agencies. The first will focus on the southern maritime border. The second will be responsible for the southern land border and the West Coast. The third will focus on investigations to support the other two task forces. In addition, DHS will continue the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer. This included additional Border Patrol agents, ICE personnel, criminal investigators, additional monitors, and working with DOJ to reorder dockets in immigration courts, along with reforms in these courts.

Revise Removal Priorities

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion.

End Secure Communities and Replace it with New Priority Enforcement Program

DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

Personnel Reform for ICE Officers

Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE ERO officers engaged in removal operations. These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel.

Expand Deferred Action for Childhood Arrivals (DACA) Program

We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at least 5 years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action - they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

Promote the Naturalization Process

To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

Support High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions. 

***

The parents of Deferred Action for Childhood Arrivals (DACA) recipients were not singled out for deferred action or any other kind of relief, apparently because of the opinions expressed in a Department of Justice memo questioning the legality of such action (for a link to, and discussion of, this memo, click here).

There has been considerable discussion about whether the President posseses the authority to take the modest immigration action that he did.  Not surprisingly, some Republican leaders in Congress claimed after the speech that the President's actions go beyond his constitutional authority.  Professor Darren Hutchinson of Dissenting Justice has a succinct and effective rebuttal to the claims that President Obama lacks the constitutional and statutory authority for the deferred action and related measures that he outlined in the speech.  Similarly, Professor Eric Posner of the University of Chicago School of Law has declared that the Obama plan is "perfectly constitutional."  Nonetheless, Maricopa County's notorious Sheriff Joe Arpaio reportedly has already sued in the hopes of shutting down the Obama plan.

All in all, President Obama has unveiled a modest set of reform proposals that, in this blogger's opinion, fit comfortably within his powers and are wholly consistent with the dictates of Congress.  Contrary to the claims that the President has declared himself to be the "Emperor of the United States" (Breitbart) or its "monarch" (Senator Ted Cruz), President Obama has outlined an approach to improving the current immigration system well within the constitutional mainstream.  His administration clearly has worked hard to put together a program that addresses some pressing immigration problems in a legally responsible -- and certainly legally defensible -- manner.  Although nothing is this uncertain world can ever be certain, it is difficult to see how any legal challenge to President Obama's measures could prevail in the end.

KJ

 

https://lawprofessors.typepad.com/immigration/2014/11/president-obamas-immigration-move-a-courageous-stance-beyond-his-authority-or-too-little-too-late.html

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