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Political Battle Over Executive Action

President Obama’s recent executive actions on immigration reform continue to generate political battles and mixed emotions of hope and disillusionment among immigrant communities. Here is an update of the current state of affairs on this dynamic issue.

On November 20 of last year, President Obama announced a number of steps that his administration proposed to fix elements of the immigration system. Although his proposal spanned the family and business immigration tracks, the part that generated the most hope– and opposition from Congressional Republicans– is the “DAPA” program. A related measure was the expansion of the already functioning DACA program, making it available to a wider age range of people.

What these programs have in common is that they offer a defined group of people a temporary reprieve from removal (“deportation”) and crucially, a work permit. Both rely on the immigration authorities granting the person “deferred action“, which essentially means that for the time being, ICE, the law enforcement arm of the immigration bureaucracy, will not take action to remove the person.

Both DACA and DAPA rely on the concept of prosecutorial discretion. This is a legal term for a familiar idea: law enforcement officers make informed choices about who to go after. A police officer on patrol can’t pull over every car that fails to signal a turn or has a broken taillight. She picks and chooses which cars to stop depending on a variety of criteria. Similarly, a District Attorney does not charge every person who is arrested with a crime. She determines which cases are a priority depending on the seriousness of the crime, the quality of the evidence against the person and hence the likelihood of a successful prosecution, and other factors. In both cases the law enforcement officer has a choice, i.e. discretion, how to set priorities in doing her job.

In the same way, President Obama is in charge of enforcing the laws. He supervises the immigration agencies and gives them broad direction in how to carry out their duties. And, contrary to the frequently repeated charge that he is failing to enforce the law, these programs actually are directing his subordinates how to go about enforcing the law, against whom, and under what circumstances. You may agree or disagree with the priorities he chooses, but it is legally part of his authority. Neither DACA nor DAPA grants any permanent legal status, they are not “amnesty” programs.

DACA stands for Deferred Action for Childhood Arrivals. It covers people who came to the U.S. before age 16, either graduated high school or equivalent or are in school, have been in the U.S. continuously since a fixed date, and have no disqualifying criminal problems. DACA is commonly referred to as being for “DREAMers”, using the acronym for a legislative proposal to give this group of young people permanent status.

DAPA stands for Deferred Action for Parental Accountability. It proposes to give parents of U.S. citizen or permanent resident children the same reprieve from deportation if they meet certain requirements, such as being present in the U.S the last five years and not having criminal problems. As with DACA, a person granted DAPA would be issued a work permit.

Congressional Republicans have fought to block these initiatives with a variety of strategies. Shortly after the President’s announcement, Attorneys General from a number of states sued the federal government to block executive action. On Monday, a federal judge in Texas issued a temporary injunction barring the Administration from implementing both the DAPA and expanded DACA program– which was set to start accepting applications on Wednesday. The Administration is analyzing how to appeal the ruling, but for now the injunction serves to maintain the status quo and block the implementation of any of the new measures. The injunction does not block the DACA program as has been operating for the last two plus years.

On the legislative front, Congressional Republicans are seeking to withhold funding from the immigration agencies that would implement the programs. And this has resulted in a very high-stakes game of ‘chicken’ that could result in a shutdown of the entire Department of Homeland Security. Although Executive branch agencies are typically funded by Congress, many, including USCIS are self-sustaining to some extent by charging fees to users. For instance, the filing fee for a green card application is $1,070. These fees collectively provide for the bulk of the operating funds for U.S. Citizenship & Immigration Services (USCIS). But filing fees do not completely cover the cost of operations, and there are interconnections with other non-fee generating agencies such as ICE that make the picture complicated.

House Republicans passed an appropriations bill to fund the Department of Homeland Security (DHS)– which covers all of the immigration agencies, the Transportation Security Administration (TSA), and other law enforcement agencies such as the Coast Guard. The bill contains provisions to strip funding to implement executive action. House Democrats were virtually unanimous in their opposition to this measure, insisting instead on a “clean” bill. The Senate has yet to produce a compromise bill, and President Obama has promised to veto a bill that blocks executive action on immigration. Earlier this week House Majority Leader John Boehner stated that he is willing to push this issue even if it results in a shutdown of DHS.

The political showdown over executive action is provoking fear, frustration and determination in immigrant communities. In Portland, organizers of a summit of undocumented youth related that participation in the event is much lower than anticipated due to worry over the current climate around immigration. But many are expressing determination (linked article in Spanish) to continue a drawn-out struggle to make positive changes in the immigration realm.

The judicial and legislative battles are beginning skirmishes in what looks to be a fight that will last into the upcoming election season. The situation is dynamic and complicated. It is vital to get good information and reliable advice before filing anything with immigration so that you understand the risks and benefits involved. The immigration attorneys at Parker, Butte & Lane are watching these issues and can inform you of your options.


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