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Matthew Kolken on Deportation And Removal

Caught Between a Deportation Impasse and a Hard Place

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The National Day Laborer Organizing Network released a petition yesterday pressuring President Obama to expand protections from deportation to members of the undocumented community that could potentially benefit should there be a change in the immigration law. They successfully argue that the Obama administration maintains “extremely broad and virtually unreviewable discretion” over the enforcement of U.S. immigration law. In sum, they are asking for deferred action for all.

Republicans have already pushed back warning that if deportations are stopped so will immigration reform. Republican Senator Lindsey Graham commented that "If [President Obama] stopped deporting people who are clearly here illegally, then I think any chance of immigration reform is dead."

So there are two issues here: 1. is it legally permissible for the President to expand deferred action; and 2. is it politically expedient.

I have previously addressed the first question. There clearly is constitutional authority for the President to exercise prosecutorial discretion on behalf of deserving groups of immigrants. He already has. See: The Morton Memo, Deferred Action for Childhood Arrivals, Provisional Unlawful Presence Waivers, and the most recent memorandum providing Parole in Place for Military Families.

The second question is the tricky one, because there will be political fallout if the President temporarily suspends deportations by expanding deferred action to the majority of people currently in the country without status. I do not believe that the GOP is bluffing, as there are people in the party that are looking for any excuse to stop immigration reform in its tracks. That said, there may be a happy medium.

The President could utilize existing law and procedures to provide permanent solutions to many immigration problems without jeopardizing immigration reform. Specifically, the President could expand parole in place to immediate relatives of United States citizens who are currently ineligible to apply for a Green Card because they entered the United States without inspection. This would provide an immediate bridge to a Green Card, and ultimately citizenship while also stopping the destruction of families.

Thinking outside the box, parents of citizen children under 21 that have lived continuously inside the country for ten years could have immigration court proceedings instituted against them to enable them to apply for cancellation of removal, which application provides a basis for the issuance of employment authorization, and if granted results in a Green Card.

The President could also create a new provisional nonimmigrant unlawful presence waiver process for individuals currently inside the United States without status. This would allow people to apply for a waiver before they depart the country, as their departure triggers a bar from return. If the waiver is granted individuals would be able to avoid deportation by departing the country without penalty, and potentially return legally with a work visa if one is available.

The administration could also be more proactive educating people of the availability of humanitarian relief, such as the protections available to victims of abuse, human trafficking, and other crimes. A memorandum on the clarification of the grounds for humanitarian asylum could be issued to permit individuals that have suffered other serious harm unrelated to the grounds for asylum to feel more comfortable affirmatively applying for protection. President Obama could also expand this list of countries designated for eligibility for Temporary Protected Status due to conditions that temporarily prevent the country's nationals from returning safely, or if the country is unable to handle the return of its nationals adequately. The President could also ensure that the previous prosecutorial discretion and detention memorandums are actually enforced, and enforced uniformly.

Point being, there are options available to the President to provide a way for the undocumented population to use the existing law to their advantage, and more importantly, achieve more than merely kicking the can down the road by simply deferring deportation. The question becomes, will Republicans abandon immigration reform if any of these options are employed by the President.

The bottom line is that the President's deportation record has resulted in him being stuck between the current immigration impasse, and a hard place of his own creation.

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Updated 03-27-2014 at 01:38 PM by MKolken

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  1. Jack2's Avatar
    The name alone (National Day Laborer Organizing Network) pretty much gives you an idea of what they are about, and it is no surprise that they do not recognize the legitimacy of limiting immigration--whoever shows up here deserves to stay forever. Simply being here earns that.

    undocumented immigrants are the backbone of the American economy
    I'm not sure what that means by but if it is what I think they mean it is not true.

    Continuing the current mass deportation policy undermines the
    economic future of the nation.

    immigrants have earned the right to membership in our nation?s
    Violating law entitles you.

    Suspending the deportation of these individuals promotes the prudent allocation of
    government resources
    That's a funny one.
  2. semininarlaw's Avatar
    These are some good ideas to help people who have been here a long time.
  3. Jack2's Avatar
    Not just a long time. They are for ignoring the law/rewarding illegality for people who get here today, tomorrow, forever. It's like DREAM Act proponents who feature the argument that the eligible person did nothing wrong, had no choice, etc. Of course, they also want amnesty for the parent who did choose to violate immigration law.
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