A TIME FOR HONEST TRUTH: A PASSIONATE DEFENSE OF PRESIDENT OBAMA’S EXECUTIVE ORDERS ON IMMIGRATION

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November 20, 2014 was a historic
night. The President announced a series of executive actions to expand enforcement at the border, prioritize deporting
felons not families, and require millions of undocumented immigrants to pass a
criminal background check and pay taxes in order to temporarily stay in the
U.S. without fear of deportation. The authors welcome this development as
they have been advocating for executive actions since 2010 to repair a broken
immigration system in the face of Congressional inaction.  In The Tyranny of Priority Dates we first advocated that the President had broad authority
under the Immigration and Nationality Act to ameliorate the plight of many who
were caught in the crushing immigrant visa backlogs, followed by many widely
disseminated blogs thereafter that further fine-tuned and refined the proposals
made in our original article. We were there at the very beginning and so the
executive actions personally mean a lot to us just as they mean to the millions
who will get relief from our harsh immigration laws. As we summarize the
executive actions, we point to our blogs that may be helpful to further advance
and develop these measures.



The most audacious and bold of these executive actions is to provide deferred action to at least 4 million
immigrants who on the date of the announcement are parents of US citizens and
lawful permanent residents and who have continuously resided in the United
States since before January 1, 2010. They also must have no lawful status on
November 20, 2014, and must have also been physically present on that date and
at the time of making the request for consideration of deferred action. They
must also present no other factors that would make a grant of
deferred action inappropriate and are not an enforcement priority. 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. As bold as this policy seems,  in a larger sense, it stands as a
reaffirmation of a well-established tradition that affords the
Executive Branch wide discretion in the enforcement of our nation’s immigration
laws
.



Another bold move is to
expand the population eligible for
the Deferred Action for Childhood Arrivals (DACA) program to young people who
came to this country before turning 16 years old and have been present
since January 1, 2010, and extending the period of DACA and work authorization
from two years to three years. DACA will be expanded to include 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.  The entry
date will also be adjusted from June 15, 2007 to January 1, 2010.  The
relief (including work authorization) will now last for three years rather than
two.




Critics have assailed
these two executive actions in isolation as being unconstitutional and usurping
the power of Congress. These arguments have been made before, especially after
DACA was implemented.  In Yes He Can: A Reply to Professors Delahunty and Yoo, we argued that even
at the historically high levels of removal under President Obama, some 400,000
per year, this amounts to only 3-4% of the total illegal population. That is
precisely why the Obama Administration has focused its removal efforts, which
as stated in a letter by the former DHS Secretary Napolitano to Senator Durbin,
on “identifying and removing criminal aliens, those who pose a threat to public
safety and national security, repeat immigration law offenders and other
individuals prioritized for removal.” The truth is that deferred action is
neither recent nor revolutionary. Widows of US citizens have been granted this benefit.
Battered immigrants have sought and obtained refuge there.  Never has the
size of a vulnerable population been a valid reason to say no. Critics fail to
consider INA Section 103(a)(1), which charges the DHS Secretary with the
administration and enforcement of the INA. This implies that the DHS can decide
when to and when not to remove an alien. They also fail to consider INA section
274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any
alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR
274a.12(c)(14), which grants employment authorization to one who has received
deferred action, has been around for several decades.



Courts are loath to review any
non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v.
Vigil,
508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct.
138, 1459 (2007).  It is up to DHS, rather than to any individual,
to decide when, or whether, to initiate any enforcement campaign. Heckler v.
Chaney,  
470 US 821, 835 (1985). Arizona v. United
States
,
132
S.Ct. 2492, 2499 (2012)  articulated the true reason why: “(a) principal
feature of the removal system is the broad discretion exercised by immigration
officials…Federal officials, as an initial matter, must decide whether it makes
sense to pursue removal at all…” Furthermore, critics of the executive orders
do not feel constrained by the wide deference that has traditionally
characterized judicial responses to executive interpretation of the INA. Under
the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron
USA, Inc. v. Natural Resources Defense Council, Inc.,
467 US 837(1984),
federal courts will pay deference to the regulatory interpretation of the
agency charged with executing the laws of the United States when there is
ambiguity in the statute. The courts will intrude only when the agency’s
interpretation is manifestly irrational or clearly erroneous. Similarly,
 the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Servs.,
545 US 967 ( 2005),while affirming Chevron,
held that, if there is an ambiguous statute requiring agency deference under Chevron,
the agency’s understanding will also trump a judicial exegesis of the same
statute.  Surely the “body of experience” and the “informed judgment” that
DHS brings to INA section103 provide its interpretations with “ the power to
persuade.”  Skidmore v. Swift& Co., 323 US 134,140 (1944).



It is also worth mentioning that while there
is no express Congressional authorization for the Obama Administration to
implement such measures, the President may act within a “twilight zone” in
which he may have concurrent authority with Congress. See Youngstown Sheet
& Tube Co. v. Sawyer
, 343 U.S. 579, 635 (1952) (Jackson, J.,
concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the
Supreme Court held that the President could not seize a steel mill to resolve a
labor dispute without Congressional authorization, the Administration under
through the executive actions is well acting within Congressional
authorization. In his famous concurring opinion, Justice Jackson reminded us
that, however meritorious, separation of powers itself was not without limit:
“While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence, autonomy
but reciprocity.



While the focus of the criticism is on the
two deferred action programs that will potentially cover 5 million people,
there are also executive actions that include measures to strengthen
Southern  border security
and to reorder
removal priorities. Under this reorderingtop priority with respect to removal will be placed 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. DHS will also end
Secure Communities and replace it with the Priority Enforcement
Program

that 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.



These measures
relating to immigration enforcement can hardly be seen as a power grab by
President Obama, and should further insulate him from legal actions such as law
suits and even impeachment. Indeed, it would border on the ridicule, as
suggested by a leading Yale scholar,  if impeachment proceedings are commenced
against President Obama for committing treason, bribery or other high crimes or
misdemeanors. The enforcement measures in the executive actions show that they
are balanced, and just like deferring the removal of low priority immigrants,
the prioritization of removal of others is well within the authority of the
President and are part of an overarching enforcement strategy. It is also worth
reminding critics that the beneficiaries from these deferred action programs
will be barred from the Affordable Care Act and will not be able to purchase
health insurance or get any subsidies. These beneficiaries will also face the
wrath of certain state governors who will deny them driver’s licenses as
Arizona did to DACA recipients in 2012. Fortunately, in Arizona Dream Coalition
v. Brewer
,the Ninth Circuit struck down Arizona’s spiteful policy
as being violative of the Equal Protection Clause. The decision hinged
on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an
employment authorization document (EAD) based on DACA category (c)(33) work
while they continued to accept EADs based on (c)(9) and (c)(10) categories,
which respectively correspond to applicants for adjustment of status and
applicants for cancellation of removal. This decision should hopefully
persuade other circuit courts to also strike down discriminatory laws that deny
such recipients driver’s licenses.



There are other small bore benefits that will
ensue from the executive action, but nevertheless make a meaningful and
positive impact on people’s lives and endeavor to repair a broken system.  The nation demands and deserves action now;
there is no need to wait. These operational adjustments  are well within the President’s  legal authority and are summarized below.
Their purpose and effect is not to thwart or frustrate the will of Congress.
Rather, the President seeks to make it more effective by leavening the
pernicious effects of legislative sclerosis through the injection of
administrative flexibility that it so badly needs. In each of the initiatives
listed below, the President does not create new law, which only Congress can
do, but makes the current law relevant to the unique and emerging challenges of
today and tomorrow:



Expanding the use of provisional waivers of
unlawful presence to include the spouses and sons and daughters of lawful
permanent residents and the sons and daughters of U.S. citizens



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, DHS will further clarify the “extreme
hardship” standard that must be met to obtain the waiver.



This can hardly be viewed as a power grab. The provisional
waiver program allows those who are potentially inadmissible as a result of the
3 and 10 year bars to apply for the waivers in the United States prior to
proceeding overseas for consular processing of their immigrant visas.



• Modernizing,
improving and clarifying immigrant and nonimmigrant programs to grow our
economy and create jobs



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.



In Through The Looking Glass: Adventures of Arrabally and Yerrabelly in
Immigration Land
, we advocated that Matter of Arrabally, 25 I.&N. Dec.
771 (BIA 2012) should be apply to every departure under advance parole, whether
it was advance parole in the context of DACA or an adjustment of status
application. We are pleased that the DHS has now directed its General Counsel
to issue written legal guidance in this regard. We also encourage the DHS to
use its parole authority under INA 212(d)(5) to parole entrepreneurs and other
immigrants into the US, especially beneficiaries of approved I-130 and I-140
petitions, as we have previously done in Comprehensive Reform Through Executive Fiat. We also point to Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without
Congress: Not Counting Family Members and Parole in Place
that advocate how parole in place, if applied retroactively, can also cure
unlawful presence.



Promoting citizenship education and
public awareness for lawful permanent residents and providing an option for
naturalization applicants to use credit cards to pay the application fee



To promote access to U.S. citizenship, DHS 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.



Supporting 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, DHS will amend current regulations and make other administrative
changes to provide needed flexibility to workers with approved employment-based
green card petitions. Individuals with an approved employment-based immigrant
petition who are caught in the quota backlogs will be able to pre-register for
adjustment of status to obtain the benefits of a pending adjustment.  This is expected to impact about 410,000 people.



We refer our readers to Waiting
for Godot: A Legal Basis for Filing An Early Adjustment Application
where we
show a way for this to be done. It is well within the power of the Executive
Branch to redefine what is meant by visa availability so as to allow those who
are caught in the crushing visa backlogs to apply for work authorization and
portability.



The “same or similar” definition will be
clarified for adjustment applicants who wish to exercise job portability under
INA 204(j) when their adjustment applications have been pending for more than
180 days. This is a welcome step as those who are promoted and take on higher
levels of responsibilities should also be able to demonstrate that they are
still in the “same or similar” occupation and thus keep their underlying green
card applications valid.  The length of
time in Optional Practical Training for STEM graduates will be expanded and the
relationship between the student and the school will be strengthened for this
period. The regulation that would
authorize H-4 spouses to work
will get finalized. Other
changes, such as allowing STEM OPT post-master’s degree where only the first
degree is in a STEM field are under consideration. A full rulemaking will be
undertaken to modernize
the PERM labor certification program
. There will also be greater
consistency with the L-1B specialized knowledge program. It is hoped that in
providing guidance on specialized knowledge the DHS take into account the
holding interesting reinterpretation of specialized knowledge, as discussed in Fogo De
Chao v. DHS : A Significant Decision For L-1B Specialized Knowledge Chefs And
Beyond



Visa Modernization


A Presidential
Memorandum
has been issued directing the agencies to look at
modernizing the visa system, with a view to making optimal use of the numbers
of visa available under law.  Issues such as whether derivatives should be
counted and whether past unused visa numbers can be recaptured will be included
in this effort.



Although the direction provided by
the Presidential Memorandum has been left deliberately vague, it is hoped that
the DHS seriously consider not counting derivatives separately in the
employment and family-based preferences as that will significantly reduce the
backlogs. In The Family
That Is Counted Together Stays Together: How To Eliminate Immigrant Visa
Backlogs and Why We Can’t Wait: How President Obama Can Erase Backlogs With The
Stroke Of A Pen,  
we advocated
that there was no explicit
authorization for derivative family members to be counted under either the
Employment Based or Family Based preference in the Immigration and Nationality
Act. The treatment of family members is covered by an explicit section of the
Immigration and Nationality Act (INA), Section 203(d), which only states that
derivatives shall be entitled to the same status and same order of
consideration as the principal beneficiary and says nothing about whether they
should be counted as one family unit or separately. Indeed, if the DHS does pay
heed to our recommendation, which has gained national acceptance and has also been mentioned in a Congressional Research Report, it will make the executive actions more meaningful.
If the family and employment preferences are cleared of their backlogs, and
people can apply for green cards rapidly, the lack of H-1B visas should not be
as hurtful to businesses as they are today. Indeed, this reinterpretation of
the INA, again well within the authority of the President, will be as audacious
for legal immigrants as the deferred action programs for the 5 million
undocumented immigrants.



Needless to say, all
of these executive actions are well within the President’s authority whatever
critics may say, and are much needed to repair a broken immigration system.
Still, these executive actions are clearly no substitute for reform through
Congress, and as indicated in The Fate of Executive Action After The Midterm
Elections
these actions should spur the
Republican controlled Congress to pass better and more meaningful reforms. The
President can only do so much through executive actions and cannot create new
visa or green card categories, and many are bound to be disappointed. Parents
of DACA recipients have also been left out.  A tentative intention to study the possibility of counting derivative family members as an integral unit rather than on an individual basis was announced, but nothing more and certainly not definite.  At the same time, these actions provide a
blueprint for Congress to pass meaningful comprehensive immigration reform.
They provide the template for legalizing a deserving group of immigrants who
are not a priority for enforcement purposes and also seek to account for future
flows by endeavoring to attract entrepreneurs, clarifying existing processes
such as PERM labor certifications and the L-1B visa,  and providing relief to those who are caught
up in the crushing visa backlogs. The spirit of audacious incrementalism that animates the executive orders comes from the finest American tradition of liberal reform. Such an approach sets a problem on the road to solution in the belief and expectation that future progress will follow in a way that minimizes disruption and maximizes acceptance. Once the concepts enshrined in the executive orders are established, there can be little doubt that the scope of future operations and events will grow to bring other and more significant gains.



The problems that plague our immigration
system are not beyond our ability to solve them. Their continued existence is
testimony to a lack of will, a failure of imagination.  If the President’s critics and his supporters
cannot agree on the legality or value of his executive orders, then let them
agree on legislation to replace it. As Alfred Lord Tennyson’s Ulysses so
famously reminds us : “ Come my friends, tis not too late to seek a newer
world.”



(Guest author Gary Endelman is the Senior Counsel of Foster)








This post originally appeared on
Cyrus D. Mehta & Associates. Reprinted with permission






About The Author















Gary EndelmanGary Endelman is the Senior Counsel at Foster in Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@FosterGlobal.com. The views expressed by Mr. Endelman in this article are his personally and not those of Foster.




Cyrus D. MehtaCyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.









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