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DHS Memo Explains Legal Basis For Obama's Immigration Action, Pt. 1. By Roger Algase

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Update, 12:45 pm, November 22:

POLITICO reports on November 22 that former President Bill Clinton has called President Obama's November 20 announcement of executive action on immigration "necessary" and "historic".

How appropriate that the Democratic president who signed IIRIRA, one of the harshest anti-immigrant laws in recent American history, should (with justification) praise another Democratic president, who has arguably engaged in mass expulsion of immigrants (2 million and counting) at the fastest rate in U.S. history, for finally taking courageous (and long overdue) action in support of immigrant rights.

Update, 2:17 pm November 21:

According to The Hill, the House Republicans' lawsuit against the president was filed on the morning of November 21, and deals only with the Affordable Health Care Act (ACA). It may be amended at some point to add claims based on executive action over immigration, but that has not yet happened, to the best of my knowledge.

Update, 1:01 pm November 21:

There is a late breaking report that House Speaker Boehner has filed a lawsuit against the president for allegedly abusing his executive authority. How much of this relates to immigration, or how it relates, if at all, is not yet clear. I will update further as more details become available.

Original post follows:

In view of President Obama's historic November 20 decision to expand the scope of Deferred Action in order to provide temporary relief from deportation to an estimated 4 million parents of USC or LPR children, the focus on whether the administration has a legal basis for doing so on his own, when Congress has not only failed to provide express authority for doing so, but has arguably indicated its strong opposition, at least according to Republican leaders, is bound to increase in the coming weeks and months. This of course, will be especially true after the Republicans take over the Senate in January and as the 2016 election comes ever closer.

In addition to the question of the president's legal authority to expand Deferred Action to an additional 4 million people, which is very much in the news, there may be reason to believe that the president's action will revive focus on an issue which some Republicans had tried to keep alive before the 2012 election, but has not been in the news very much recently. This is the issue of the Constitutional basis for granting automatic birthright US citizenship to all children born in the US, regardless of their parents' immigration status or lack of it.

Since the president's new action will enable millions of unauthorized immigrants to obtain temporary relief from deportation, including work permits, based their having US born children, we should not be surprised if the epithet "anchor babies", a favorite insult used by immigration opponents against Hispanic, Asian and black American children of immigrant parents, comes back into vogue with renewed force.

The reason for this is obvious: before this latest presidential initiative, it was difficult to see what kind of "anchor" US citizen children under the age of 21 would be able to provide for their parents in terms of immigration status. Put differently, the term "anchor baby" was in fact an oxymoron. A baby was too young to be an "anchor" for a parent without lawful immigration status, and by the time the child reached 21 and was old enough to be an "anchor" by petitioning for a parent or parents, he or she was no longer a baby.

This has now all changed. According to President Obama's November 20 announcement, having a USC child of any age will now offer at least temporary protection against deportation to the parent or parents. We should not be surprised, therefore, if the entire legal basis for upholding birthright citizenship for all US born children, namely the US Supreme Court's decision in U.S. v. Wong Kim Ark (1898), yet another seminal decision, arguably the most important one of all in terms of its effect on today's law, which came about as a result of the notorious Chinese exclusion laws, comes under greater scrutiny, as enraged immigration opponents look for ways to block or frustrate President Obama's latest use of the powers of executive action.

Fortunately, in Wong Kim Ark, the Supreme Court majority overcame the narrow exclusionism and bigotry of that period and took an expansive view of the 14th Amendment's guarantee of birthright citizenship which is still at the heart of our citizenship law today.

I will, however, leave a detailed discussion of that issue for a later time. I will also leave discussion of the president's proposed changes in the legal immigration system for later, not because they are unimportant, which is certainly not the case, but because there is less dispute about executive power to make regulations affecting eligibility for legal visas.

I will therefore begin with a look at the legal justification which the administration has offered for expanding the scope of relief from deportation to millions of parents of USC and LPR children. This justification comes in the form of a 33-page memo from the Secretary of Homeland Security and the Counsel to the President dated November 19 and entitled:

The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others.

The memo begins with three conclusions:

1) Prioritizing the removal of certain unauthorized immigrants is permitted under DHS's discretion to enforce the immigration laws.

2) Deferring removal of unauthorized immigrant parents of US citizens and LPR's is also permitted under DHS's same discretion to enforce the immigration laws.

3) Deferring removal of unauthorized immigrant parents of children who are eligible for relief under DACA is not permitted within the limits of DHS's discretion over immigration enforcement.

To begin with the last conclusion, while this will no doubt disappoint immigration advocates who do not want to break up DACA families, the legal basis for distinguishing the case of DACA parents from the parents of children with legal status such as USC or LPR also appears to be weak.

If the executive branch has the broad discretion over immigration enforcement which the Supreme Court decisions and other authorities discussed in the November 19 DHS Memo clearly provide, why does this discretionary authority suddenly stop at the line between parents of children who have actual legal status, and parents of children who have no formal immigration status, but are still protected from deportation by valid exercise of executive power, i.e. DACA? Certainly, humanitarian considerations, which the Supreme Court listed as an important factor that can be considered a part of executive discretion over immigration enforcement according to the Supreme Court's decision in Arizona v. U.S. (2012), discussed at length in the DHS Memo, would not be any different in terms of keeping parents and children together, regardless of whether the children had formal legal status such as USC or LPR, or merely an administrative reprieve from deportation, as in the case of DACA beneficiaries.

It would seem that the argument for making this distinction would be stronger if it were based on exercise of discretion, rather than lack of authority. In other words, with regard to the parents of DACA children, it would have made more sense of the administration were to say:

"We have the legal discretion to defer parents of DACA children from deportation too, but we are not going to exercise that discretion in favor of the parents, because even though the children were brought to the US illegally without choice and through no fault of their own, the parents were the ones who made the decision to bring the children here illegally, so why should we give the parents a break too?"

Whether one agrees with the above rationale or not, it at least has more support in the law than denying outright that the executive has any authority to "low-prioritize" this particular group of people, while at the same time asserting that it has the power to prioritize virtually everyone else who is in the US without status for deportation, up or down, depending on the circumstances.

To be continued.
___________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been conducting legal research and developing effective legal arguments in order to help business, employment and family-based immigrants obtain successful results in their work visa and green card applications for more than 30 years. His email address is algaselex@gmail.com

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Updated 11-22-2014 at 11:45 AM by ImmigrationLawBlogs

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