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Court Decisions Support Executive Power to Limit Deportations. By Roger Algase

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My respected colleague and fellow Immigration Daily blogger Matt Kolken, in his November 26 post The President Does Have the Power to Limit Deportations, exposes the president as a hypocrite for now claiming that he lacks executive power to grant relief from deportation without Congressional action, when he has in fact used that power to give selected groups deferred action or similar relief within the past 18 months. Matt gives several examples of Obama's use of executive power, including terminating removal proceedings for "low priority" immigrants, deferred action for DREAMER's (DACA), waivers for unlawful presence, and more recently, granting "Parole in Place", i.e. relief from deportation for military family members.

These examples show that despite his current insistence that he has no power to halt deportations unless Congress passes a reform measure, Obama has not hesitated to claim this power in the very recent past. Consistency in interpreting the law, it seems, matters little to this Harvard Law School graduate and former law professor. At least, it matters a good deal less than following whichever way the political winds are blowing. What a surprise!

But does the fact that the president has claimed to have executive power to stop deportations in the past prove that he actually has this power? Or are his Republican opponents right when they argue that Obama is abusing his power by granting relief from deportation to various classes of people without Congressional legislation specifically protecting them?

Which is correct? Obama the weak, vacillating or cynical president, who has broad powers over immigration enforcement which he has not hesitated to use to win re-election, but avoids using when (to paraphrase President Harry Truman's famous dictum), it gets too hot in the immigration kitchen, or Obama the tyrant who should be impeached for acting to grant relief from deportation without Congressional authority (as well as for the ongoing impeachable offense of being PWB - President While Black)?

In America, whenever there is a legal question, we look to the courts for an answer. This is no less true when the question is about presidential power over immigration enforcement, including deportation. The courts have not been silent on this issue. They have, to the contrary, supported the proposition that the executive has broad power over immigration enforcement, and that this power is based on the Constitution itself, not on Congress. However, executive power over immigration is not unlimited. Where do the limits lie?

A good place to begin looking at this issue in depth is in the CRS (Congressional Research Service) Report to Congress dated January 17, 2013 called Prosecutorial Discretion in Immigration Enforcement: Legal Issues. I do not have a link to the report, but is is easily available through Google.

The report, under the heading: Prosecutorial Discretion in the Immigration Context (page 10 of the report) states:

"In Reno v. American Arab Anti-Discrimination Committee, a majority of the Supreme Court found that the various prudential that prompt deference to the executive branch's determinations as to whether to prosecute criminal offenses are 'greatly magnified in the deportation context,' which entails civil (rather than criminal) proceedings...More recently, in its decision in Arizona v. United States, a majority of the Court arguably similarly affirmed affirmed the authority of the executive branch not to seek removal of certain aliens..." (Emphasis added.)

The CRS Report goes on to state that the courts have upheld the prosecutorial discretion of the INS and DHS with regard to matters such as the following, among many other listed items:

*
whether to parole an alien into the United States,

*
whether to commence removal proceedings and what charges to lodge against the respondent.

*
whether to grant deferred action or extended voluntary departure.

This 30-page report will be discussed in more detail in an upcoming post or posts. It gives the lie to President Obama's claim that he has no power to grant additional relief from deportation, not only because of his previous use of executive power, but because of numerous court decisions holding that the executive has very broad powers over immigration enforcement.

To be continued. Happy Thanksgiving!



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Updated 11-28-2013 at 01:21 AM by ImmigrationLawBlogs

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