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  • Article: Immigration activists are pressing President Obama to halt deportations for as many undocumented immigrants as possible. This is a “be-careful-what-you-wish-for” situation. By Nolan Rappaport

    Immigration activists are pressing President Obama to halt deportations for as many undocumented immigrants as possible. This is a “be-careful-what-you-wish-for” situation.


    Attorney General Eric Holder and DHS Secretary Jeh Johnson are preparing recommendations for President Obama on how far he can go in helping undocumented aliens with executive action without exceeding his authority. They will present him with his options before the end of the summer. The White House has said that the president will move quickly when he has this information.[i]

    It is commendable that President Obama wants to help undocumented immigrants who are here to provide a better life for themselves and their families. The attempt to do this with legislation has not succeeded. The Border Security, Economic Opportunity, and Immigration Modernization Act, S744,[ii] was passed more than a year ago, and the House Republicans have not shown any interest in it. And it is apparent that he has the power to do more with executive action. According to the American Bridge Project[iii] President Obama has issued fewer executive orders than any other president since the 19th century, and many Republican presidents have issued executive orders to address immigration issues. Their report highlights 10 instances in which past presidents have used their authority to employ selective prosecution of the immigration laws.[iv]

    On the other hand, anything President Obama can do by issuing an executive order, the next president can undo by issuing his/her own executive order. What would you expect if the next president were a Tea Party Republican? This is one of their core values, “There already is a legal path to citizenship for those wishing to immigrate to the United States. Anyone who decided to get off that path and enter the United States illegally should not be given any sort of amnesty for it is neither fair nor equal treatment under the law.”[v] According to Tea Party Congressman Louie Gohmert, “Either we’re going to enforce our law and remain strong economically and otherwise, or we ignore the rule of law and go to being a third world nation.”[vi]

    Unfortunately, it is not just a matter of what could happen if the next president wants strict enforcement of the immigration laws. Aliens who apply for discretionary relief under the present, sympathetic administration face serious risks to themselves and to their families if they are not completely honest in their applications or circumstances indicate that they are not being honest. This is illustrated by the administration’s policy on how it can use information submitted with an application for temporary lawful status under the Deferred Action for Childhood Arrivals (DACA) Program.[vii] Generally speaking, DHS is prohibited from using information DACA applicants submit as a basis for putting them in removal proceedings, but there are exceptions and other unfavorable actions are possible. The administration’s policies on how the information can be used are explained in the answer to the 19th question on the DACA Frequently Asked Questions page on the U.S. Citizenship and Immigration Services (USCIS) website:

    Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?

    A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance www.uscis.gov/NTA. Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.[viii]

    Answer 19 explains that information submitted in support of a DACA application may be shared with national security and law enforcement agencies for purposes other than removal, including identifying or preventing fraudulent claims, for national security purposes, or for the investigation or the prosecution of a criminal offense. It also states that this information sharing policy applies to the DACA applicant’s family. The most important statement, however, is the last sentence, which warns that these information-sharing policies can be “modified, superseded, or rescinded at any time without notice.”[ix] In other words, a DACA applicant has no way of knowing how the information he provides with his application will be used. There are no guarantees.

    Also, the DACA application process has created a list of people who have admitted alienage, conceded unlawful presence in the United States, and provided DHS with their names and addresses. It seems unlikely that any administration would put the young children on this list in removal proceedings, but many of them will be adults in their late twenties or early thirties when the next president is elected, and President Obama is considering a more comprehensive exercise of his executive powers to grant similar status to many more adult undocumented immigrants. While it is possible that even Tea Party Republicans would have sympathy for children on the list who were brought here by their parents when they were very young, it would be unrealistic to expect any enforcement-minded Republicans to be sympathetic towards aliens who came here on their own volition as adults.

    Moreover, if a new president wants to use the list of unlawful aliens who have received temporary lawful status for enforcement purposes, it would be very easy to expedite their removal proceedings. The government attorney would just have to establish that the aliens have such status. That would be sufficient to establish deportability. The burden would then be on the aliens to establish eligibility for some form of relief from deportation.[x] It seems unlikely that many of them would be able to carry that burden.

    I am not suggesting that President Obama should stop or restrict his use of executive orders to provide temporary lawful status for undocumented aliens. I just want the president and the aliens who would benefit from the temporary lawful status to be fully aware of the risks involved.

    [i] “White House eyes limits of immigration powers” (August 8, 2014), available at http://thehill.com/homenews/administration/214435-wh-eyes-limits-of-immigration-powers

    [ii] The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S744). http://thomas.loc.gov/cgi-bin/query/z?c113:S.744:

    [iii] American Bridge Project. http://www.bridgeproject.com

    [iv] For more information about these and other executive orders that presidents have issued to help undocumented aliens, see “Executive Actions Speak Louder than Words” (August 11, 2014), available at http://www.bridgeproject.com/american-bridge-releases-report-on-house-republicans-dishonest-attacks-over-executive-actions/

    [v] Tea Party Patriots, Immigration. http://www.teapartypatriots.org/all-issues/issues/immigration/

    [vi] “Gohmert: US Will Become ‘Third World Nation’ If Feds Don’t Enforce Immigration Laws” (July 1, 2014), available at http://gohmert.house.gov/news/documentsingle.aspx?DocumentID=386432

    [vii] Consideration of Deferred Action for Childhood Arrivals (DACA). http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

    [viii] Frequently Asked Questions About Deferred Action for Childhood Arrivals. http://www.dhs.gov/deferred-action-childhood-arrivals

    [ix] For additional information on the DACA program, see “DACA – Lessons Learned” (Mar. 26, 2014); http://discuss.ilw.com/content.php?2971-Article-DACA-%96-Lessons-Learned-By-Nolan-Rappaport

    [x] Burden of Proof, Section 291 of the Immigration and Nationality Act, 8 U.S.C. § 1361, available at http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html

    Reprinted with permission.

    About The Author

    Nolan Rappaport was an immigration counsel on the House Judiciary Committee for seven years representing the Democrats on the Immigration, Border Security, and Claims Subcommittee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for more than 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice doing visa petitions for the Catholic Church and international corporations at Steptoe & Johnson. Although he presently is retired, he is thinking about going back to work.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 2 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Nolan Rappaport clearly makes his point that unauthorized immigrants who rely on policies created by executive action without having been enacted into law by Congress have been, or will be, taking certain risks, which they need to be aware of. I fully agree with him.

      His description of the available choices also makes clear that for many, if not most, of these same immigrants, the half loaf of relying on executive action to avoid deportation is better than no loaf at all. Again, I agree with him.

      I believe that it was the comedian George Burns who supposedly said that he did not look forward to growing old, but it was still better than the alternative. One could say the same about DACA vs. no DACA.

      Roger Algase
      Attorney at Law
    1. Jayson's Avatar
      Jayson -
      The fact that Obama "has issued fewer executive orders than any other president since the 19th century" is kinda silly to point out considering that even Executive Orders are too much for him -- he simply "decreed" Deferred Action into existence and never even wrote out an Executive Order for that! The guy's completely lawless.
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