OBAMA’S EXECUTIVE ACTION IS A BIG DEAL, FOLKS – AND IT’S LEGAL TOO. SO, STAND IN LINE- IT’S FINALLY HERE!
By Ruben Salazar
In the aftermath of President Obama’s announcement on his executive action, some critics are minimizing the scope and effectiveness of the new immigration initiatives. Some people believe he did not go far enough, while others decry that it is unlawful action. Yet others express fear about registering, believing once they give their personal information they will be deported in the event the program is eliminated by the next president. But, these naysayers are either misinformed or overly pessimistic.
While this is not a panacea, and while no legal status or green card can be received, the scope of the new benefits of the immigration initiative cannot be underestimated. First of all, the infamous “Secured Communities” criminal program is eliminated and detainers discontinued , and under their new priorities immigration agents and officials will now look to deport only suspected terrorists, criminals ( 1 felony or 3 misdemeanors), and recent arrivals (after 1/1/2014). In addition, immigration lawyers will be combing their court files for people currently being deported and allow non-criminals administrative closure of their pending removal cases. This new “prioritization” and “PD” program will likely affect over 400,000 immigrants and directly reduce the current rate of 1,100 deportations per day, fulfilling a promise by Pres. Obama to focus only on criminal immigrants.
Moreover, two deferred action programs will be implemented very soon. The first one is an expansion of the current DACA (“Dreamer”) program for child arrivals put into place by Obama in 2012, resulting in work permits for more “Dreamers.” The age requirement will be eliminated, so people over 30 years of age may now apply. Also, it changed the date that continuous presence must have started from 2007 to 2010, so later arrivals now can apply. It also expanded temporary protection from deportation from only 2 years to 3 years. This new and improved DACA program is due to start in 90 days.
But, perhaps the boldest and biggest action is the creation of a new “deferred action” category for undocumented parents of US citizen or Legal Permanent Resident children of any age. This is the new “Deferred Action for Parents” (“DAP”) program. The only three conditions under DAP is that the immigrant have continuous presence in the United States for 5 years, have paid all their back taxes, and pass a criminal background checks similar to regular DACA applicants. Similar to DACA, the immigrant receives temporary protection from deportation for 3 years. This huge new program will help some 4.1 million immigrants. The new DAP program is due to start in 180 days.
Another major component is the expansion of the I-601A ”provisional waiver” program Obama put in place in 2013. Currently, only a spouse or parent of a US citizen may seek a pardon under section 601 and 601A. Before 2013, you must also leave the country to apply. This action builds upon and expands 601 waivers to include spouses and children of Legal Permanent Residents. Plus, the definition of “hardship” will be expanded and clarified. This expanded 601A waiver program should also help 10’s of thousands of immigrants who crossed the borders with no documents, and who need a 601 waiver of their 3 or 10 year bars to relief.
Accordingly, we should understand that this is no minor tweak of the immigration laws; it was a massive and bold initiative which will directly affect over 5 million hard-working, non-criminal immigrant youths and parents. And, Pres. Obama met his promise to the Latinos, big time!
For those who continue to believe the myth that the President’s actions are too broad or illegal, the law says otherwise. Executive action is clearly legal and constitutional under our 3-branch system of government. In fact, ever since we became a republic, American Presidents have issued Executive Orders. Indeed, every single President, except for one, has issued Executive Orders. George Washington correctly claimed he had the authority under Article II, Section 3 of the Constitution to issue executive orders. Some Presidents have used this executive branch authority much more than others. President Franklin Delano Roosevelt issued 3,522 Executive Orders, while William Henry Harrison issued zero, but it should be noted that Harrison died one month after being sworn in. And who thinks President Lincoln’s Emancipation Proclamation was a bad idea? That was an Executive Order, as well. Thus, under our Constitution, Presidents have wide discretion to determine how an existing federal law should be enforced. In fact, multiple Supreme Court opinions have upheld the President’s right to submit orders explaining how they will enforce existing laws. Immigration laws are not immune from those rulings. Multiple Presidents have issued executive orders on immigration, most notably President Ronald Reagan in 1987. That Republicans are so willing to accept President Reagan’s right to submit an executive order, but cry foul when it comes to President Obama, only shows this debate is more about politics than law. And, lest we have any doubt, the US Supreme Court has already said the President and immigration officials have “broad discretion”’ in enforcing immigration laws. In 2012, Justice Anthony Kennedy, in an opinion striking down Arizona’s anti-immigrant law, wrote the following:
“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. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.” ( Arizona v. United States)
When this is translated into layman’s terms—it means the US Supreme Court agrees that the President has broad authority to decide who should and shouldn’t be deported. Immigration is strictly a Federal issue and the Executive branch has the exclusive right to see the law be enforced in the best and most economical way it deems fit. That is why we have a President and why Presidents are able to submit orders explaining how they will enforce existing laws.
As to those who fear registration or of the effectiveness of the new DACA and DAP programs, we need only look to the highly successful 2012 DACA program, which has now been in place for over 2 years. The Pew Research Center estimated that up to 950,000 young immigrant youths are eligible to apply for DACA. Through March 31, 2014, 86% of 643,000 applications accepted have been approved, according to government data. So the vast majority of applicants get work permits. Some 77% (480,000) Mexicans have received work permits. The highest approval rate is in California, with 162,000 DACA recipients, compared to only 88,000 from Texas. The highest application rate is in Arizona, with some 66% of 34,000 eligible people have applied, according to the Migration Policy Institute. By all indications, then, the DACA program has been very successful to date. So, don’t worry, the new DACA and DAP programs should be just as successful. And, this new expansive 2014 DACA program could extend deportation relief to hundreds of thousands of immigrant youths.
Moreover, don’t be afraid Congress will take this program away. Due to the separation of powers clause in the US Constitution, Congress has no power to repeal what they call Obama’s new “immigration amnesty” program. Nor does Congress have the power to defund it, as it is wholly funded by the immigrants through the application and processing fees they pay.
And, yes, it is true that the next president may take the new programs away. But, I don’t think I’m going out on a limb by saying that, as a result of the blatant refusal of the Republican House of Representatives to take a simple up or down vote on the US Senate-approved Bill on comprehensive immigration reform, the Latino community will be soured and be driven to vote for more Democrats in 2016. I also don’t think it’s any news that popular Democrat, Hilary Clinton, will likely run for and win the next presidential election, and she may even be re-elected. And, I just don’t see President Clinton revoking these beneficial programs and alienating her Latino base. Thus, the new DACA and DAP programs will likely remain around for at least the next 9 years; which translates into 3 extensions of work permits.
So for all the naysayers, and the doubting Thomases, I say unto you – you are wrong, and you should be more positive and re-consider by applying or helping others apply as soon as possible. Stop being so pessimistic. The glass is half full! This is now a reality. Get informed, stand in line, and get on board and help families and friends to take advantage of this big deal! And, while you are at it, take time to thank our President for making good on his promise to Latinos, and for his bold show of leadership in helping fix our broken immigration system. Ruben Salazar, Esq.
The Law Offices of Ruben Salazar, ALC, in Fontana, California is offering free DACA and DAP legal consults immediately. 909-428-4500