Executive Action on Immigration: Steps Announced and DOJ Legal Analysis in Support

As described in the CMS Migration Update, on November 20, 2014, President Barack Obama announced a series of unilateral steps designed to improve the US immigration system. This blog briefly summarizes select Executive Action measures announced by the President related to legal status and enforcement priorities, and describes the US Department of Justice (DOJ) analysis on the scope of the President’s authority in this area. The latter issue and DOJ’s analysis promise to remain a source of controversy as Congress explores options to limit or stymie the President’s initiatives.

Expansion of the Deferred Action for Childhood Arrivals Program

The Deferred Action for Childhood Arrivals program (DACA) will now be extended to unauthorized immigrants born prior to June 15, 1981, who arrived in the United States before reaching 16 years of age and who:

• Have been physically present since January 1, 2010;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

In addition, the DACA expansion extends the period of deferred action (effectively a reprieve from removal) and work authorization from two years to three years. The expanded DACA program will go into effect 90 days following the President’s November 20, 2014 announcement.

Creation of Deferred Action for Parental Accountability Program

Under the new Deferred Action for Parental Accountability program (DAPA), unauthorized immigrant parents of US citizens and lawful permanent residents (LPRs) will be able to apply for temporary relief from deportation and work authorization for a renewable period of three years if these parents:

• Have continuous residence in the US since January 1, 2010;
• Have a US citizen or LPR child born on or before November 20, 2014;
• Register and submit biometric data;
• Pass background checks and have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety; and
• Pay taxes and fees.

The DAPA program will go into effect 120 days following the President’s November 20, 2014 announcement.

Expansion of the Use of Provisional Waivers of Unlawful Presence

In May 2013, the U.S. Department of Homeland Security (DHS) initiated the Provisional Waiver program. The program allows certain unauthorized immigrants to apply — inside the United States — for a waiver of unlawful presence, which is a ground of inadmissibility that bars their return from abroad. If the waiver is granted, the applicant can depart the United States to pursue consular processing and apply for her or his immigrant visa abroad. The fact that the waiver is pre-adjudicated allows close family members of U.S. citizens to leave the country without fear of being barred from returning based on their unlawful presence in the United States. Thus, the program provides an incentive to persons who qualify for a family-based visa to be able to pursue the process to secure it.

Under the original (current) program, the waiver is available only to spouses and to unmarried children under age 21 (but not parents) of US citizens. Under the President’s expanded program, spouses, minor and adult children of US citizens and of LPRs will also be eligible to apply for the waiver. The government will start accepting applications under this expanded program after it issues new guidance and regulations.

To learn more, visit http://www.uscis.gov/immigrationaction.

Modernization, Improvement and Clarification of Immigrant and Nonimmigrant Programs

Upon issuing necessary guidance and regulations, US Citizenship and Immigration Service (USCIS) will work with the Department of State to modify the Visa Bulletin system in an effort to better allocate immigrant visas. USCIS will also work to clarify various standards to grant parole, waivers and status adjustments to eligible researchers, inventors and skilled foreign workers.

Promotion of Citizenship Education and Public Awareness and Credit Card Option For Naturalization Application Fee

Starting in 2015, USCIS will allow naturalization applicants to use credit cards to pay the application fee. The government will also assess potential for partial fee waivers in the next biennial fee study.

It is important to note that the initiatives above have not yet been implemented, and USCIS is not accepting any requests or applications at this time.

Priority Enforcement Program

The President also announced a directive to focus enforcement resources on the removal of national security, border security, and public safety threats. In addition, DHS Secretary Jeh Johnson will replace the Secure Communities program, which screens arrested immigrants for immigration violations, with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses deemed enforcement priorities or who otherwise pose a danger to national security.

For detailed information on the President’s executive actions, visit http://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action and http://www.uscis.gov/immigrationaction#2.  Video of the President’s announcement can be viewed at https://www.youtube.com/watch?v=6Q_Xk66gsRU.

Department of Justice Legal Analysis

In preparation of the President’s executive actions, the Secretary of Homeland Security and the Counsel to the President requested that the Department of Justice (DOJ) provide a legal opinion on the following questions:

• Whether the removal of certain unlawfully present US residents would be a permissible exercise of DHS’s discretion to enforce the immigration laws;
• Whether the creation of a deferred action program for parents of US citizens and LPRs would be a permissible exercise of DHS’s discretion; and
• Whether the creation of a deferred action program for parents of DACA recipients would be permissible.

In a 33-page memo, DOJ Office of Legal Counsel detailed its findings. It concluded that DHS proposed enforcement prioritization was legally permissible, reasoning that, among other things, the policy was consistent with removal priorities established by Congress and the policy did not identify any category of removable aliens whose removal may not be pursued under any circumstances.

The DOJ also found that DHS proposed deferred action program for parents of US citizens and LPRs was legally permissible, based on various factors:  (1) the program would respond to resource constraints and to particularized humanitarian concerns; (2) the program would be consistent with congressional policy, since it focuses on a group — law-abiding parents of lawfully present children who have substantial ties to the community — to whom Congress itself has granted favorable treatment in the immigration process; (3) the program would provide for the exercise of case-by-case discretion, thereby avoiding the creation of a rule-like entitlement to immigration relief or abdicating DHS enforcement responsibilities for a particular class of aliens; and (4) the program would provide interim relief that would prevent particularized harm that could otherwise befall both the beneficiaries of the program and their families.

The DOJ, however, concluded that the President did not have the legal authority to offer broad deportation relief to parents of children granted protection under DACA, reasoning that executive action must be consistent with the congressional policies that underlie the laws being enforced. Although providing a reprieve from deportation for the parents of US citizen and LPR children was consistent with Congress’ policy to refrain from separating individuals who are legally entitled to live in the US from their immediate family, Congress did not seek to shield the unauthorized parents of unauthorized children (i.e., parents of DACA beneficiaries) from removal. Furthermore, a program providing temporary relief from deportation to parents of DACA recipients could justify the extension of deferred action to additional populations.

To read the full memo, visit http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf.