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How Much Power Does Obama Have To Grant Deportation Relief? By Roger Algase

Rating: 4 votes, 5.00 average.

Executive action to grant relief from deportation is finally on the way, according to President Obama's June 30 speech in the Rose Garden. See POLITICO, Obama: GOP failed to pass a 'darn' immigration bill (June 30, updated July 1).

As Seung Min Kim and Jennifer Epstein report in the above article, before his speech, Obama met with immigration advocates and told them that he will examine all options within his Constitutional powers to grant relief from deportation without action by Congress.

House speaker John Boehner is now threatening to sue the president over his alleged abuse of executive power in a number of so far unspecified areas. No one seriously doubts that immigration enforcement is among them. There are also veiled, or perhaps not so veiled threats that a move in the House to impeach the president may not be far behind.

However, political stunts aside, the legal issue of how much executive power the president has to limit deportations is now front and center in the immigration reform debate. This post will look at this question.

One of the most comprehensive and in-depth discussions of this issue appears in a December 27, 2013 study by the Congressional Research Service entitled Presidential Discretion in Immigration Enforcement: Legal Issues. The study is written by two Legislative Attorneys, Kate M. Manuel and Todd Garvey.

In support of their contention that the executive branch has broad powers over immigration enforcement, the authors cite two Supreme Court cases.

The first is Reno v. American-Arab Anti Discrimination Committee, 525 US 471, 490 (1999). In that case, the Supreme Court majority stated that the concerns that prompt deference to the executive branch's determinations about whether to prosecute criminal offenses are "greatly magnified in the deportation context", as deportation proceedings are civil rather than criminal.

And in Arizona v. US 132 S. Ct at 2498 (2012) the Court majority held that a "principal feature of the removal system is the broad discretion entrusted to immigration officials". The Arizona decision also specifically listed "immediate human concerns" and "equities of...individual cases" as among the factors which could be involved in prosecutorial discretion.

Over and beyond these broad judicial statement, the authors of the above study cite BIA or federal court decisions upholding prosecutorial discretion with regard to numerous immigration enforcement issues.

These include the following:

- whether to parole an alien into the United States;

- whether to commence removal proceedings and what charges to lodge against the respondent;

- whether to pursue formal removal proceedings;

- whether to cancel a Notice to Appear or other charging document before jurisdiction vests with an immigration judge;

- whether to grant deferred action or extended voluntary departure;

- whether to appeal an immigration judge's decision or order, and whether to file a motion to reopen;

- whether to invoke an automatic stay during the pendency of an appeal; and

- whether to impose a fine for particular offenses.

The above indicates that if Speaker Boehner goes ahead with any plans he may have to sue the president for exceeding his authority with respect to the exercise of discretion over immigration enforcement, the speaker will have a heavy burden of showing that the law is on his side.

However, are there also limits to executive power over immigration enforcement? The above Congressional Research Study also deals with this question, as will be discussed in an upcoming post.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years. His email address is

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Updated 07-01-2014 at 01:25 PM by ImmigrationLawBlogs

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  1. Nolan Rappaport's Avatar
    I am back to disagreeing with Roger. Feels more natural.

    It's a good thing that we have a president who wants to help undocumented aliens, but I think it is a mistake to do it with executive discretion. This is a section from a recent article I wrote that explains why executive discretion is problematic.

    "1. Caveat emptor. Deferred action under DACA is not a good or even a safe alternative to statutory relief.

    DACA does not provide a path to lawful permanent resident status. It just offers temporary relief from the threat of deportation and work authorization. Continuation of the program is dependent entirely on the desires of the president, and what one president can accomplish today through executive action, another can undo tomorrow using the same authority. Only bipartisan legislation supported by majorities in both houses of Congress can provide a permanent solution for the undocumented immigrants living in the United States.[iii]


    Submission of a DACA application can be dangerous to the applicants and to members of their families. The following explanation of how information provided with DACA applications can be used is provided on the DACA Frequently Asked Questions page of the DHS website:

    Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS?s Notice to Appear guidance ( Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

    This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.[vi]"

    Pay particular attention to the last sentence, which warns that the policy, which is not favorable now, can be ?modified, superseded, or rescinded at any time without notice.? In other words, an applicant has no way of knowing how the information he provides with his application will be used. This is not likely to be a problem under the present administration if the applicant does not engage in criminal activities and has not made false statements or submitted fraudulent documents in support of his application, but there is no guarantee that future administrations will have the same attitude towards undocumented immigrants as the present one. DACA provides a list of people who have admitted alienage and unlawful presence in the United States and provided DHS with their names and addresses. It seems extremely unlikely that children on the list would be placed in removal proceedings, but many of them will be adults in their late twenties and early thirties when the next president is elected.
  2. ImmigrationLawBlogs's Avatar
    Nolan Rappaport and I do not disagree all that much, it seems. We both agree that Congressional action on immigration reform would be better than executive action.

    But there isn't any chance of Congressional action right now and may not be for a long time.

    So does that mean that the president should do nothing, even though he clearly has the power to so at least something, and maybe a great deal, to keep American families together and prevent another million or two million people from having their lives in America destroyed by right wing hate?

    I don't see the logic of that.

    There may be a few immigration reform supporters left (very few) who still believe in the fantasy that if the president continues to give into anti-immigrant racism by deporting unauthorized immigrants at what is arguably the fasted deportation rate in our history, then Steve King and the rest of the Tea Party controlled House GOP caucus will ultimately agree to a bipartisan immigration reform bill.

    Of course, no possibility can be ruled out. Kim Jong-Un might also suddenly resign and call for free elections in North Korea.

    The chances that either of the above might happen are about the same.

    Roger Algase
    Attorney at Law
    Updated 07-02-2014 at 05:46 AM by ImmigrationLawBlogs
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