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GOP Rep. would deport 11-yr. old's dad. Plan B could save him legally. By R. Algase

Rating: 3 votes, 5.00 average.
Just in case anyone thought that the August town hall meetings would change the minds of many Republican House members who oppose immigration reform, the Huffington Post ran a story on August 19 called: Scott Desjarlais, GOP Congressman, Tells 11-Year Old Girl Her Father Should Be Deported.

The link is:

www.huffingtonpost.com/2013/08/19/scott-desjarlais-father-deported_n_3780107.html

According to the story, an 11-year old girl by the name of Josie Molina, who said she has legal status herself, spoke up at a town hall meeting in Murfreesboro TN and asked GOP Tennessee Rep. DesJarlais what she could do so that her unauthorized immigrant father, who is facing deportation proceedings, could stay with her.

Here was his answer:

"Thank you for being here and for coming forward and speaking. This is a big intimidating crowd and appreciate you coming forward and asking your question, but the answer still kinda remains the same, that we have laws and we still need to follow those laws and you know, that's where we're at."

The Huffpost story continues:

"His remarks prompted applause from the large Tea Party contingent at the event."

This raises an interesting question. Who has the authority to determine deportation policy in America, the federal government or the Tea Party? Reading the headlines, one would think that the answer is the Tea Party, because there appear to be enough Tea Party sympathizers among the House Republicans to block CIR, including legalization for 11 million unauthorized immigrants, from being enacted by the legislative branch.

But does that mean that federal power over deportation ends there? What about the executive branch? Cyrus Mehta and Gary Endelman contend in their August 19 article The Lazarus Effect that the Obama administration has the inherent executive power to extend DACA to other segments of the unauthorized immigrant population.

While one might question their suggestion that Florida GOP Senator Marco Rubio may have endorsed this view (as opposed to his merely setting it up as a straw man to raise the specter of President Obama as a dictator in order to appeal to Rubio's Tea Party base) their contention finds support from a much more solid source - the Supreme Court of the United States.

Most observers think that last year's Supreme Court decision in Arizona v. US 567 US___(2012) striking down parts of Arizona's SB 1070 immigration law stands only for the principle of federal pre-emption over state action in the immigration field.

But, at least by way of dictum, the Court's decision goes farther than that. It also upholds the role of the executive in determining deportation policy.

Justice Anthony Kennedy's majority opinion states (at page 4 of the opinion):

"A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8-13...
Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. (Italics added.)

Justice Kennedy, a few lines later, writes:

"Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers, trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission." (Italics added.)

While the above language is phrased in terms of discretion in individual removal cases, it is not inconsistent with the concept of applying "equities" in the case of certain classes of otherwise removable people as well, just as President Obama has done through the DHS's DACA initiative and its companion initiative to terminate "low priority" removal proceedings though the exercise of discretion.

Justice Kennedy's words clearly rebut the argument that the executive branch has no power to avoid deporting 11 million people as part of its obligation to enforce the immigration laws.

In the light of the Arizona decision, that argument now (if it ever did) makes no more sense than did Rep. DesJarlais' implied suggestion to Josie Molina that just because the law is written a certain way, he and his colleagues in Congress have no power to change it.

Since the Supreme Court has now unambiguously endorsed the principle of broad executive power over deportation, what is there to stop the Obama administration from going ahead with plan B now by extending DACA incrementally?

And why not start with extending it to the parents of young children who have US citizenship or other legal status in this country (including DACA)? I am sure that 11-year-old Josie Molina, whom the Huffpost reports to be seeing a child psychologist to deal with the stress over her father's impending removal, would like to know the answer to that question.

Posted by Roger Algase
August 20, 2013










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Updated 08-20-2013 at 04:48 PM by ImmigrationLawBlogs

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