President Obama’s actions last evening, intended to ‘fix’ our immigration system, whether you agree with them or not, will change the practice of immigration law and the rights and procedures that have been emerging for the past several years. I will detail a few.

EOIR: The system is in danger of collapse.

Cases in the Immigration Court are now being adjourned well into 2018, at least in the New York district. This by itself is an abomination, but the president’s executive action will change this in ways the White House has probably not anticipated.

Cases will have to be administratively closed where the respondents are eligible for executive action. Each will have to be adjourned until their status, under the president’s executive orders, is approved. Cancelation, asylum, adjustment and other matters will have to be adjourned until decisions on the executive action are made on a case-by-case basis.

Those of you who have charged on a case-by-case basis will have to recalculate your fees down since full hearings may no longer be necessary. Instead of a full-blown $20,000 case you can expect to have TPS like applications with interviews. Many of these cases will again end up at the EOIR. This will not happen quickly.

My advice for the bar is to lease a Ford Focus rather than a Corvette Stingray until this matter plays out.

The EOIR will have to take at least one hundred thousand cases off the calendar. It could possibly be many times that number. The system does not have enough judges and staff and it will literally take an act of congress to produce the resources necessary. Those cases that fail to qualify will need to be recalendared and the cases reprocessed.

The immigration courts cannot proceed in most cases until it is clear what the new regulations covering the executive order cover. Until such time adjournments will be common.

Cases scheduled far into the future will have to be replaced on the master calendar in order to reevaluate whether to speed them up.

Chaos will ensue.

ADMINISTRATIVE PROCESSING: The administrative process will not begin for at least one year. There will be proposed rule making, publication and comments and then resources will need to be marshaled for these new tasks. Those who have observed this before know how long and arduous this can be.

Nothing will begin in earnest until after the holidays and even then, it is one thing to draft a general policy speech but the devil is in the details and I expect it will take several months if not longer to get those straight. We will be in 2016 election mode while this is going on. Congress will not like this, nor will the presidential candidates who will have to take stands on this issue. No Texas two step here.

During this time cases before the immigration court will be in limbo.

The people within CIS who are given the task to implement the president’s executive order are those least likely to want to exercise it. They are responsible for more work than they can handle now and they are predisposed toward negative result decision-making. Another-words, they want to say no to the applications they will have to adjudicate and believe that their job is to stem the tide of the aliens entering the United States. The initial regulations will be as restrained as possible.

Also, putting more work on their plates will slow down the larger system further. Resources will have to be taken from other areas within the agency for this purpose. I expect that the system will bog down for several years as the number of applications and interviews skyrockets.

Expect hundreds of thousands of fraudulent applications that will need to be vetted. Interviews will take months and then years to conduct. No quick fix here.

Two and a half years ago President Obama declared a new policy to allow some aliens eligible to visa process overseas, and obtain a waiver of the ten-year bar, before leaving the United States for their visa appointments. Those waivers were limited to immediate relatives and intended to be granted generously but the DHS has been very stingy in granting such waivers. There has been no oversight from the White House since the original order was given.

The president’s expansion of this program to legal permanent residents unless changed and implemented with increased oversight will be meaningless and because it will take place during the next presidential election I suspect nothing will change.

I expect that these new changes will work the same way.


All people processed under this program should be eligible for adjustment of status if they have a case to hang it on. Many do and I suspect it’s in the hundreds of thousands. These backlogged cases will be a drag on the system too but are for the most part legitimate. More resources will be needed.

This will have the effect of extending the quota lists significantly. That extension will force those waiting outside the United States to wait longer while those waiting here will be able to work and travel.

LITIGATION: Expect it.

There will be suits along the way from those who support the executive action and those who oppose it. There will also be suits from those who object to the way the order was applied in their cases. How this will play out in the end is anybody’s guess.

My guess is that there will be simultaneous suits from both sides that might add years to the process during which time these people will be in legislative limbo. This was the pattern after Simson-Mazzoli was implemented in the 80s.

One side will say that the regulations and their implementation are too stringent and do not comply with the president’s order. The other side will say that the president has no authority for this.

Right now about 50% of all cases in the United States Court of Appeals are immigration related. That number will grow and with it a slowdown in that court.

My fear is that this matter might end up in the Supreme Court where the court could rule that the president has the power or has over reached. That might restrain a future president from acting in an important area or allow powers to some future president that could be abused. No good can come from this in any case.

NEW LEGISLATION: Expect it. The President has forced the hand of congress.

This will take us to or beyond the next presidential election during which President Obama has insured that this issue will become a major one unless congress passes some major legislation soon. I believe that both sides will not want this issue to remain on the table for a variety of reasons.

Those supporters of Hilary Clinton will want to find a way to free her from the necessity of committing on this issue since every commitment on any issue will narrow her base of support and her frontrunner position. There will be significant pressure to cooperate with the Republicans.

The Republicans will also want to dispose of this issue since they have made a commitment to not compete with the Democrats on the basis of race, religion or ethnic origin. In order to be the party of good, responsible and constitutionally restrained government, the Republicans need to take this issue off the table and focus elsewhere.

This is not to say that they will pass an amnesty as those who push for Comprehensive Immigration Reform euphemistically call it, but there needs to be some plan to at least allow more administrative forgiveness based upon hardship. Some changes to cancellation more akin to suspension might be possible as well as a removal or increase in the H-1 cap. It might be that simple to take the wind out of this issue and allow congress to move on to other things.

ENFORCEMENT: President Obama threw a few bones to the enforcement crowd. I believe the administration is enforcing the law where it can but any extra action here will have minimal effect especially when the draw of a new program is factored in. More aliens will come here because of the program than the additional resources offered will be able to stop.

FUTURE: President Obama has thrown gasoline on the fire of immigration “reform” and has forced the hand of all involved. He has intentionally created a mess that will force congress to resolve. On the other hand he has set a precedent that future presidents can and will use in ways that President Obama has not anticipated.

Executive actions can be used to remove aliens or restrict benefits in the future. This action along with President Roosevelt’s actions during WW2 detaining Japanese and other American’s of heritage can be used to justify detention of aliens for a variety of reasons under the heading ‘executive action’. These actions only seem advisable when you agree with them but the expansion of presidential power can easily by abused. Anything is possible even if we wish to ignore the possibility.

The American political process is more important than the individual that uses it. This was not the best way to proceed.

Reprinted with Permission

About The Author

Harry DeMell

Harry DeMell has been practicing law in the areas of visa, immigration and nationality since 1977. He is a graduate of New York Law School.
Mr. DeMell is an active member of the American Immigration Lawyers Association (AILA). He has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members.
Mr. DeMell has also chaired committees for the Nassau County Bar Association and the Brooklyn Bar Association. He is a frequent speaker and a writer on important visa and immigration issues.

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