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Executive Actions on Immigration Part 2: Authority and Opposition

White_House_DC.JPGPresident Obama’s executive actions (EAs) on immigration, announced on November 20, 2014, offer relief to millions of undocumented immigrants who have lived here for years and have contributed to American society. Since the President took these actions without Congress, they have been highly controversial in some circles. Several federal agencies have offered support of the White House’s legal authority to take these actions, while numerous states have filed suit seeking an injunction against them.

We described the EAs in detail in an earlier post. The EAs, in part, expand the Deferred Action for Childhood Arrivals (DACA) program and offer deferred action or waivers of unlawful presence for certain relatives of U.S. citizens and lawful permanent residents. They are essentially a form of prosecutorial discretion, much like DACA. The Executive Branch of the federal government has authority to prioritize certain types of immigration cases for prosecution, typically meaning deportation. A November 19, 2014 memorandum by Principal Deputy Assistant Attorney General Karl R. Thompson (the “DOJ memo”) reviewed the President’s, and by extension, his Cabinet’s legal authority to take executive action on immigration without Congress.

While an estimated 11.3 million undocumented immigrants live in the U.S., Thompson states that the federal government can handle no more than 400,000 removal cases per year. The U.S. Supreme Court has held that the President is not required to pursue every “technical violation of [a] statute” to meet his Constitutional duties. DOJ memo at 4, citing Heckler v. Chaney, 470 U.S. 821, 831 (1985). Thompson concluded that deferred action is a permissible form of prosecutorial discretion for relatives of U.S. citizens and lawful permanent residents, but not for family members of DACA recipients, who are not themselves lawfully present in the U.S. except through deferred action.

The Department of Homeland Security (DHS) issued two memos the following day regarding the EAs. One memo covered the expansion of DACA, and the other addressed changes to DHS policies on prosecutorial discretion. The second memo described three priority levels for immigration enforcement:

1. National security, border security, and public safety threats;
2. People with multiple misdemeanor convictions or immigration violations; and 3. People ordered deported on or after January 1, 2014.

Seventeen states filed suit against the federal government because of the EAs. State of Texas, et al v. United States, No. 1:14-cv-00254, complaint (S.D. Tex., Dec. 3, 2014). The complaint quotes from various statements by the President calling on Congress to pass various immigration bills, apparently in an effort to portray the EAs as counter to federal immigration law.

The complaint alleges that the Obama administration has contributed to the humanitarian crisis at the U.S. border involving children from Central America. It even cites a U.S. district judge who accused DHS of “completing the criminal mission of individuals who are violating the border security of the United States” by reuniting children transported across the border with their parents in the U.S., rather than turning them away. United States v. Nava-Martinez, No. 1:13-cr-00441, order at 2 (S.D. Tex., Dec. 13, 2013).

The plaintiffs claim that they will be harmed by an increase in the number of undocumented immigrants in their states, even though the EAs specifically apply only to people who have been in the U.S. since 2010. They also claim that the EAs will “increase human trafficking…by the Mexican drug cartels” in their states. Texas, complaint at 23. They claim violations of the President’s constitutional duty to “take Care that the Laws be faithfully executed” and the Administrative Procedure Act.

Samuel C. Berger is an immigration attorney who represents immigrants and employers in New York and Northern New Jersey. To schedule a confidential consultation with a skilled and experienced immigration advocate, contact us today through our website or at (212) 380-8117.

Web Resources:

The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others (PDF file), Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, November 19, 2014
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (PDF file), Secretary Jeh Charles Johnson, Department of Homeland Security, November 20, 2014
Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (PDF file), Secretary Jeh Charles Johnson, Department of Homeland Security, November 20, 2014
Complaint (PDF file), Case No. 1:14-cv-00254, State of Texas, et al v. United States, United States District Court, Southern District of Texas, December 3, 2014
Order (PDF file), Case No. 1:13-cr-00441, United States v. Nava-Martinez, United States District Court, Southern District of Texas, December 13, 2013
More Blog Posts:

Immigrant Advocates, Politicians Call for Cities to Reject Federal Immigration Detainers, New York & New Jersey Immigration Lawyer Blog, August 20, 2014
How Immigration Laws Regarding Refugees and Asylum Relate to the Situation at the U.S.-Mexico Border, New York & New Jersey Immigration Lawyer Blog, July 9, 2014
New Jersey Governor Signs Bill Based on DREAM Act Allowing Certain Undocumented Immigrants to Pay In-State Tuition at Public Universities, New York & New Jersey Immigration Lawyer Blog, January 22, 2014
Photo credit: By AgnosticPreachersKid (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.