Recently President Obama said that he would no longer pursue immigration reform after John Boehner said he will not put a comprehensive immigration reform bill up for definitive vote in the House of Representatives. Instead, he said that he will expand ‘administrative immigration reform.’ This blog is to explore for the reader what the author thinks the President can do, and what he cannot do, to achieve ‘administrative immigration reform’ without the acquiescence of the anti-immigrant reform Republicans in the House of Representatives. The President’s decision is also complicated by the highly publicized arrival of children whose parents in Central America have sent them north, due to poor economic conditions, failed governments, and salient gangs who together deprive their children of any hope of a decent future. These children have actually been coming to the U.S. for many years, but the media’s current focus on their arrivals has become clear and louder, and has complicated the already contentious immigration policy debates.
The reader should, or may be aware that this President has already engaged in three instances of “administrative” immigration reform. First and most famously, President Obama (or one of his advisors did and the President takes all the credit, of course) created the ‘Deferred Action for Childhood Arrivals,’ or DACA program which gave temporary work permission and protection against deportation to those who came to the U.S. under the age of 16 before June 15, 2007 and who have no felony convictions, or no significant misdemeanors, meaning no DUI’s or misdemeanor sex offenses. The Deferred Action for Childhood Arrivals program was challenged in U.S. District Court in Texas but the challenge was dismissed because the Plaintiffs did not first resort to the administrative remedy called the Collective Bargaining Agreement and the Civil Service Reform Act to remedy the alleged damage to ICE agents who claimed that they would violate their oath if they followed through on granting deferred action. Their injury was generally speculative, but the so called aggrieved agents did not first go through the administrative process. This is akin to an alien who is ordered deported who, instead of filing an administrative appeal to the Board of Immigration Appeals, instead files a petition for a writ of habeas corpus in U.S. District Court. That procedure would be a slam dunk loser. Mr. Kobach, the Secretary of State of Kansas, filed an appeal of his loser strategy to the Fifth Circuit, but the case will not be decided before elections. Nevertheless, he should lose the appeal, and lose badly. This will not stop him in his Quixotic bid to undo the President’s common sense solutions to a problem the Congress refuses to agree on, primarily along partisan lines.
The next instance of administrative immigration reform executed by President Obama was hushed up from the general public. This program is called ‘parole in place,’ and it was quietly “promulgated” in November 2013. The majority of Americans have not heard of it. In laymen’s terms, it means that the U.S. Department of Homeland Security will grant a ‘parole’ to those who entered the U.S. without inspection, or “illegally,” in order to treat them as if they had been inspected if they are the spouse or parent of a U.S. Citizen who is, or was in one branch of the U.S. military. The idea of this discretionary grant of ‘parole in place’ is to make the immigration process easier (or in some cases, possible) for the families of those who serve, or who have served in the military. These foreign nationals can, upon receiving a grant of ‘parole in place,’ seek lawful permanent residence without the usual unlawful presence bars, and without any showing of extreme hardship to qualifying relatives to be eligible. The existence of the various unlawful presence bars penalize those who have resided in the U.S. without status and who then subsequently depart the U.S. These so-called bars make it hard, or in some cases impossible, for the rest of immigrant families to achieve reunification of the family under our current system.
This ‘parole in place’ program has been hushed up, probably because of an agreement not to publicize the fact that the “anti-amnesty” Republicans have quietly agreed (e.g. by not loudly protesting) to a ‘limited amnesty’ to some of those undocumented aliens, or “illegals” who have entered the U.S. unlawfully. The term ‘amnesty,’ as the reader should know, is like snake venom for the Republicans who have vehemently opposed immigration reform for all these years. Although the author’s idea of expanding ‘parole in place’ to all who can benefit from it is not new, this program of ‘parole in place’ could easily and legally be expanded to all spouses of U.S. Citizens, and spouses of lawful permanent residents. Without it, bona fide spouses of U.S. Citizens are subject to having to live outside the U.S. for 10 consecutive years, regardless of how many children they may have, and regardless of any extenuating circumstances their family can show to Government adjudicators. Yet the Republicans cling to this anti-family legislation, i.e. the unlawful presence bars, which they literally shoved down President Clinton’s throat five weeks before his re-election in 1996.
Expansion of ‘parole in place’ would ease the burden of the vast majority of those who are involved in one of the Obama Administration’s other ‘administrative immigration reforms.’ One of his other administrative reforms is the process of granting unlawful presence waivers ‘stateside,’ or in advance of the trip to the U.S. consulate in the home country. This program of allowing stateside waivers started in March 2013 has allowed hundreds, if not thousands of those who are adversely affected by unlawful presence bars to process their ‘waivers’ without first having to depart the U.S. and therefore triggering the bar from the U.S. for 10 consecutive years. The stateside waiver processing procedures have eased the pressure on many immigrant families because many waivers are denied outright, or are substantially delayed once the alien departed the U.S. Thus many families are separated for months, or even up to ten years during the waiver application process if the waiver is eventually denied. A ‘waiver’ is nothing more than an immigration pardon based upon a showing of ‘extreme hardship’ (or other standards for other waivers) to a small circle of qualifying relatives of the applicants. For unlawful presence bars, the hardship to U.S. born children does not count.
This idea in the law should be known as the ‘anti-Mexican’ rule. Sorry to Texas Republicans, but Rep. Lamar Smith who happens to be arguably the most powerful anti-immigrant member of the House, invented the ‘unlawful presence bars’ in 1996, presumably with an eye toward keeping Mexican laborers cheap, and by making it much harder, if not impossible, for thousands of Mexicans to become lawful permanent residents and then voting U.S. Citizens. To compound, or perhaps to understand more fully the reasons for the creation of the unlawful presence bars, the reader should take into account the well-known fact that naturalized citizens from Mexico historically become loyal Democrats. Rep. Lamar Smith was well aware of this when he came up with this idea about how to bar the future Latino Democrats. On the other hand, the existence of the unlawful presence bars has undoubtedly fueled the growth of the undocumented population in the U.S. Once an undocumented person leaves, he or she cannot lawfully return for ten consecutive years. In other words, departure from the U.S. after a period of unlawful status of 180 days or more for an undocumented person spells the end of achieving lawful status in the U.S. This has created a perverse incentive to remain in the U.S., contrary to the drafters’ desires. This is a classic example of the law of unintended consequences.
Returning to the central theme of available administrative reforms, one should take into account that if an alien is granted a ‘parole in place,’ there is no longer any need to show any hardship to obtain lawful permanent resident status. This situation is just like that of the spouses of U.S. Citizens, or the parents of U.S. Citizen children who have attained the age of 21, and who entered the U.S. legally. These ‘wannabe’ lawful permanent residents who are married to U.S. Citizens, or who are the parents of children who have attained the age of 21 normally need not show any hardship in order to be granted permanent resident status even if the foreign national spouse or parent of a U.S. Citizen who has turned 21 has overstayed his or her authorized visit in the U.S. for years. ‘Parole in place’ puts the majority of those who entered the U.S. without inspection on the same ‘hardship free’ track to lawful permanent resident status which many other applicants for lawful permanent residents now enjoy.
One should not lose sight of the fact that President Obama was once a law professor at the University of Chicago. He taught Constitutional law. One of the most salient features of Constitutional law as taught in many U.S. law schools is a series of U.S. Supreme Court cases which all say one way or another that in no area of law is Congress’ authority to regulate more absolute, or ‘plenary’ than in immigration matters. See, for example, The Chinese Exclusion case, Chae Chan Ping v. U.S., 130 U.S. 581 (1889); Kleindienst v. Mandel, 408 U.S. 753 (1972), and Denmore v. Kim, 538 U.S. 510, 523 (2003). There are more such cases from the U.S. Supreme Court since 1889. President Obama undoubtedly has not forgotten these cases from his days as a Constitutional law professor. These cases emphasize Congress’s authority to make all kinds of shameful laws, such as the exclusion of Chinese merely because they were Chinese, and the policy of mandating the indefinite detention of all lawful permanent residents convicted of many crimes throughout their individual deportation proceedings. The question to be presented in the Courts may be whether the President as the Chief Executive in charge of the U.S. Department of Justice and the U.S. Department of Homeland Security can formulate selective enforcement policies and leave the other foreign nationals present in the U.S. without current permission alone, at least for the time being. That, it seems to the author, is the real question the Republicans are threatening to challenge. The court challenge to the Deferred Action for Childhood Arrivals program was filed in Federal District Court in Texas. The challenge as presented did not force the Federal judge in Texas to decide the legality of the DACA program on the merits for reasons which will be discussed below.
What else can the President do in the face of House inaction apart from expanding the use of ‘parole in place?’ For starters, the President can grant deferred action, or parole in place to the parents of those granted Deferred Action for Childhood Arrivals. The author expects that the President will indeed try to do this. Rep. Lamar Smith has said publicly that he will fight back. Let’s wait and see. The author thinks Mr. Smith may be bluffing since he may doom his party from recapturing the White House for years to come if he does attack expansion of administrative immigration reform in the Courts. There are an awful lot of Spanish speaking children of parents who either have been deported, or who have no way to remain lawfully in the U.S. They will not forget Republican Congressional obstructionism when they are old enough to vote.
What else can the President do to pursue immigration ‘administrative reform?’ He can expand the grant of prosecutorial discretion or deferred action to a greater group of individuals, or ease the criteria for granting this form of relief from being thrown out of the country. At this time, the following factors are considered in order to exercise a favorable exercise of discretion to not proceed against foreign nationals in proceedings by ICE attorneys: length of residence in the U.S., the criminal history of those in proceedings, the immigration history of the applicants, national security threats posed by the Applicants, or other public safety concerns presented by the Applicants, ties of the Applicants to the community, ties of the Applicants to the home country, conditions in the home country, the presence of U.S. Citizen or lawful permanent resident family members, and whether or not the applicant falls into any other enforcement categories.
Can the President lawfully grant a new class of individuals work permits as has been suggested by some observers? This will be a dicey question if it reaches the Federal Courts. You can bet that Kris Kobach, the Secretary of State of Kansas who led the unsuccessful challenge to DACA in Texas, will be waiting to use the Federal courts “to make laws,” as former President George W. Bush was so fond of accusing ‘liberal judges’ of doing. If the reader is not already aware, deferred action is historically a little used executive remedy to decline to execute orders of deportation, exclusion, or what are now euphemistically called “removal” orders against certain foreign nationals. Deferred Action for Childhood Arrival applicants seem to fall within that category. Deferred action is really a humanitarian choice of the allocation of resources, at least in the author’s view. The Federal judge in Texas didn’t have to decide the legality of the D.A.C.A. program in Kansas Secretary of State Kris Kobach’s failed challenge. The broader question of whether President Obama can give a huge class of immigrants a temporary work permit solely based upon legislation which passed one branch of Congress but not the other, and thus did not reach his desk for signature is a seemingly more difficult question than the legality of D.A.C.A. itself. This is really what happened when the President institutionalized deferred action in the Deferred Action for Childhood Arrivals. Such a bold move may generate litigation if the Republicans dare to fight it.
President Obama may be hoping once more that the House Republicans will just capitulate now that the primaries are over and compromise on a reform immigration bill. The Republicans may finally realize that the litigation route will reveal who the true enemies of papers for hard working undocumented immigrants are. What can the President do besides what he has already done? For starters, he can expand the ‘parole in place’ program beyond the ‘immediate relatives’ of those who serve, or who have served in the military. It is time for the President to take bold administrative steps if we are to restore fairness to our immigration system. The House of Representatives has clearly forfeited its chance to show that the words ‘compromise’ and ‘immigration’ can co-exist in a single sentence. The President no longer has to run for re-election. The author would like to see a little more spine from this President on this issue. Despite its questionable legality, the author advocates that the President implement the full panoply of the legalization provisions of S744, or the Senate immigration bill which the House of Representatives has refused to put up for a vote. The main provisions of this bill in a very simplified fashion are as follows: an alien physically present in the U.S. must have been present in the U.S. since before January 1, 2012, does not have three or more misdemeanors convictions not arising out of a different series of arrests (with a humanitarian exception), or a felony conviction, and no longer need worry about the physical presence bars. The President can decide to utilize a version of these over-simplified criteria to decide who it will grant a work permit and deferred action registration, much like it did for the DACA’s.
If the President does expand immigration reform to provide some sort of work authority to those who would qualify as registered provisional immigrants, he will force the anti-immigrant wing of the Republican party led by Kansas Secretary of State Kris Kobach to file a challenge in a Federal Court this fall, to find a theory to act upon, to detect an appropriate injured plaintiff, and to find a way around the requirement of exhaustion of an administrative remedy. Good luck! On the other hand, Obama might not act so boldly on administrative immigration reform as the author advocates because some of his domestic advisors might whisper to him that by doing so he might unite Republicans and induce them to turn out in higher numbers than they ordinarily would turn out to vote in the upcoming mid-term elections. If the President does expand administrative immigration reform to include the concept of ‘registered provisional immigrants,’ it is doubtful that a Federal Court will reach a decision on the merits to a challenge to his authority to do so before the November elections. Also, the anti-immigrants in the House of Representatives will have to try to solve the dicey jurisdictional problems known to Constitutional lawyers as ‘standing’ and ‘exhaustion of administrative remedies’ in order to be able to stay in Court. For the non-lawyer reader, the concept of standing is generally that the Plaintiff must show that the Plaintiff is individually harmed by the proposed legislation, or in this case, the administrative action, or inaction. This is not easy to show. The term ‘exhaustion of administrative remedies’ means that the party who seeks to utilize the power of a Federal Court to correct an agency wrong must first go through the established administrative appeal procedures. From a political standpoint, such a court challenge would force the Republicans to state the reason for their opposition to the concept of ‘registered provisional resident.’ It may no longer be enough for House Republicans to repeat the tired old mantra which we have heard for years that ‘we have to control the border first.’ That argument is worn out, and makes no sense. The refugees from Latin America are ‘economic refugees,’ a concept which is not found in the Board of Immigration’s interpretations of the Refugee Act, or otherwise in the asylum laws of the United States. The children who are pouring across the border are economic refugees in the purest sense of the word. They are coming to the U.S. because governments in the home countries are not working hard enough to protect them from gangs, kidnappings, and other random acts of violence. The schools in their countries of origin are not nearly as good as the schools in the U.S. Under the the U.S. Constitution as interpreted by Plyler v. Doe, 457 U.S. 202 (1982), undocumented children can go to public school once they get here. The parents of these children fleeing Central America are so powerless to give their offspring a chance at a successful career in their lifetimes that thousands are reluctantly sending their children to the United States.
The President can take bold action, instead of staying on the sidelines and continuing to hope that Congress can find a solution. He knows full well that he as a half Afro-American President with somewhat ‘liberal’ tendencies he is the beacon of everything wrong with this country for the House Republicans. They will vigorously oppose whatever he wants or whatever he does merely because it is this President’s expressed desire. From the author’s point of view, it is no longer acceptable for President Obama to play Mr. Nice Guy with the House Republicans to try to strike a deal. They have played nothing but hardball with him – the President needs to show some spine and stop playing Mr. Nice Guy, or he can continue to be naïve about what the Republicans are really all about. Who knows, courageous steps toward expanding administrative immigration reform may bring out the Latinos to vote for the President’s party in the mid-term elections. As a politician, that should be what he wants. As a policy maker, the President needs to have the courage to recognize that immigration reform is good for the economy and the country. He should publicly remind Kris Kobach and his friends that it is no coincidence that in the states where Mr. Kobach has helped to draft anti-immigrant, pro police enforcement legislation, the local economies are almost uniformly stagnating. The President can help bring the nation forward on this issue, despite the obstructionists and their threats of filing more federal court challenges to the President’s authority to utilize resources wisely. It is high time to temper the enforcement only policies which immigrant families in the U.S. have suffered though since the early Bush administration with mercy and common sense.
These views expressed above are of the author only, and are not intended as legal advice, nor as a plan of action. Copyright 2014. All rights reserved.