It required several months of deliberations with senior Obama administration officials to construct the legal reasoning in protecting millions of immigrants that entered the country illegally from deportation. A very specific group of these immigrants present a specific dilemma because they are the parents of the group called dreamers.
According to those that advocate for the dreamer group, they are a particularly worthy group because they entered the country illegally, but were granted temporary amnesty by DACA. DACA is an acronym for Deferred Action for Childhood Arrivals program. This program was initiated in 2012 and their advocates are suggesting the same relief for their parents.
To satisfy this preclusion, the administration pursued a pathway for inclusion of this group. However, DHS, The Department of Justice and the Executive scrutinized the legal arguments and determined that it would not be possible.
According to one senior official, the group looked at all the possibilities in earnest, but there was simply not a way to advance this opportunity legally. This official was privy to the most internal interworking of the process and because of this, they had to maintain his anonymity.
A lawyer that was informed on the internal debate mentioned that some officials were advising options that simply were illegal to implement. It was at this point that the lawyers objected and they eventually prevailed.
Ultimately, the politically expensive decision to omit the parents of dreamers accentuates the political and legal ramifications of attempting to shield millions of illegal immigrants from deportation. The President has no cover from either side of the debate with conservatives blaming the President for allowing law-skirting illegals to remain with amnesty and advocates decrying the massive deportation rate. Those seeking, H-1B visas and agricultural workers were also excluded in the Nov. 20 issuance of the executive action by President Obama.
Tiptoeing Through Immigration Policy Legalese
Lawyers for the federal government attempt to walk the line between finding the legalese that will allow more of the immigrants that are present illegally to remain in the country without protracting the ire of congress and potentially expose the policies to being overruled congressionally. Originally, this territory was supported by judicial review.
GOP lawmakers have been intense in their opposition to the new immigration executive order. Many important GOP elected officials deem the action by the president as an overreach of his authority. However, this action was written to uphold the action and to also negate the criticism by some precise legal positioning.
These legal opinions are bolstered by a 33 page treatise dispensed by the Office of Legal Counsel. The Office of Legal Counsel is under the jurisdiction of the Justice Department. This memo is an atlas of the legal decisions made by the administration’s agents as they traversed the highly volatile legal topography.
The crux of the administration’s legal opinion is based on prosecutorial discretion. The directive is chocked full of judicial and historical references to precedents that strengthen the idea that it is the president’s prerogative to determine which groups will be allowed to remain and which should be deported. However, it also is cognizant of the fact that the problem ultimately is a problem that can only be solved by congressional action.
The memo addresses the exact legal reasoning that is used by the team to address the issue of judicial review. It also expresses its point of view that this process is only abated by the will of the congress to engage the issue in a manner that promotes a resolution.
The administration’s lawyers had broad agreement that the President had the proper authority to offer legal protection from deportation to the parents of legal permanent residents and American citizens. Critics of the prior administration lamented the cohesiveness of the group and their wholehearted agreement to the plan.
However, experts of constitutional jurisprudence contend that this process is completely within the law and a normal course of action. They attest that lawyers and their clients often agree on the facts of these types of decisions and do not always have a contentious relationship, but often an employee and an employer relationship in which the lawyer assists their clients in such efforts.
Previous conservative and liberal presidents have set precedent for the actions that the president is undertaking. Additionally, past actions from Obama have also gave some political cover for this executive order. Even conservative icon, President Eisenhower had shielded some segment of immigrants from being exposed to the possibility of deportation. However, conservatives equivocate with the size of those protections versus Obama.
Congress established a prioritized list of those that face deportation more readily, and criminals are most vulnerable. It also established that a priority was to keep families together as a humanitarian consequence. This is also evident in the fact that the spouses of citizens have an easier path to visas and citizenship than most immigrant groups. These two facts drove the legal opinion by the government that legal permanent residents and the parents of U.S. citizens should be deferred.
In a more broad fashion, there have been several past occasions that the government has granted people that were in the country illegally through no fault of their own a deferment to remain in the country. Foreign students that could not return home after Katrina and those that were relatives of victims of 911 were the most recent cases.
However, some of the rules that determined who could benefit from a deferral program seemed arbitrary in fashion. Only those that were in the country prior to Jan. 1, 2010 and with a qualifying child by Nov.19 would be protected temporarily. This is similar to the timeline that was set forth in the DACA action. These immigrants had to also be in the country for five years before protection would be extended.
The administration did not begin with a specific number of people to offer a deferred action, but the numbers were trimmed to reflect a number that a republican congress would deem an outright affront to their perceived authority by the Executive. It is noted in the memorandum that whatever the number that is being deferred, it is only a fraction of the 11 million that remain in the country illegally. They professed to have tested decision through several scenarios.
Additionally, the memorandum gave specific reasons to exclude the parents of those that benefitted from DACA. The first reason is that congress had not approved a deferment action of this kind prior to this executive action and that the recipients of DACA are only on a temporarily deferred action and their illegality is uncontested by either side.
Certain political immigrant advocate groups attribute this exclusion to the fact that this particular group of immigrants do not harbor the correct amount of political efficacy that other groups have. This is to the detriment of this group and their desire to remain in the country without fear of being torn from their families.
No Legal Bar For The Provision
They also assert that there is no legal bar for the provision because using age as a metric for those that benefit is not separate from the legal authority to extend those same benefits to their parents. This means that it is part and parcel of the same preclusion of the law.
Foreign workers that are superiorly skilled and agricultural workers that seek H-1B visas are also excluded from this action. The administration at the senior levels contend that an argument for their deferment could be made economically versus humanitarian. However, this action would not be backed by any precedent that has been set by any congress in the past.
Critics from the previous administration contend that deferred action for illegal immigrants could be a wise policy decision, but that the process by which this particular administration made this decision in a wholly illegal manner that is akin to the president having all the power to construct law in government.
However, a high level attorney that participated as the U.S. solicitor general for Bill Clinton is in strict disagreement to this assertion. This official contends that history has shown many instances of precedent to cement the president’s authority to shield certain groups from the possibility of deportation. They contend that many of these precedents have been set in congressional action and that the administration had performed extensive due diligence.
However, the lawyers for the Justice department were careful to add an addendum that was also present in the 2012 directive. It says that this executive action does not interfere with immigration officials’ ability to deport those that may otherwise qualify for an exemption. They contend that this policy allows the decision of deportation to be determined on an individual basis. This is to give the correct environment in which to consider the circumstance that would be the basis to exclude or include an immigrant. This leaves the authorities with enough space to perform their jobs effectively and as they see fit.
One senior official offers a summation that says that because someone is eligible to apply does not automatically mean that they will be eligible for deferment. Immigration advocates say that this legal limbo caused people to remain hidden with DACA and would do the same under the new action, and they also profess that this fear permeates the illegal community.
However, the administration is satisfied with the number of people that will eventually be protected temporarily from deportation under the new program. They also add that although the parents of DACA recipients and agricultural workers are excluded, they may still be eligible under this program although their inclusion is not guaranteed. Additionally, they cite the willingness of the administration to extend work visas under other circumstances also as a means to thwart criticism from the very groups that they are seeking to protect.