While the political battles and gridlock in Capitol Hill persist in the wake of the government shutdown fiasco, a new dialogue is emerging about the immigration reform bill stuck in the House of Representatives. In this current political landscape, the prospects for passing immigration reform this congressional session appear slim. If legislation doesn't pass in November, it may not be until 2015 before Congress revisits it again, since 2014 is an election year. Over the past two weeks, young people and immigrants have participated in large-scale nonviolent actions across the country, stopping deportation buses with their own bodies, sitting in front of them and chaining themselves to the wheels. These high-risk nonviolent actions carry a sense of urgency on par with the nonviolent actions of the Civil Rights movement.
As a result, many questions have risen about what falls within the power of executive action and at the state and local level. In August, Senator Marco Rubio made a comment warning that if Congress failed to pass immigration reform, President Obama could "legalize 11 million people by the sign of a pen," just as he did by granting deferred action to DREAM youth last year. This sparked mixed reactions from immigrant rights advocates and legal experts. Some argued that it would be extremely difficult, if not impossible, for President Obama to cover all 11 million undocumented immigrants by expanding the Deferred Action for Childhood Relief (DACA) program. Others, such as Neidi Dominguez of the California Immigrant Youth Justice Alliance, responded by saying that Marco Rubio's proposal was actually a great idea. The real question was why hasn't he done it already?
With this piece, I hope to shed some light on President Obama's authority to enact executive orders to defer the deportation of 11 million undocumented immigrants and provide them with work authorization to integrate into our society. Historical and legal arguments would support President Obama should he decide to move in this direction.
Let's begin with Deferred Action for individuals who may be subject to the enforcement of any existing removal order or being placed in removal proceedings, using DACA as the most recent example. It wasn't until a group of young Dream leaders pressured high level White House that the President began to seriously consider providing administrative relief for Dream Act eligible youth. Yet the Department of Homeland Security (DHS) and its predecessors have granted deferred action since at least 1971. Since then, the federal courts have recognized, and implicitly approved, the existence of deferred action and DHS's authority to grant it. With a dysfunctional Congress holding in its hands the fate of 11 million people, it is possible to make a similar historical and legal case for President Obama to use his authority to expand the deferred action program.
A second process, closely related to Deferred Action, is Deferred Enforced Departure (DED). Through issuing an Executive Order, the president has the authority to direct the Secretary of DHS to grant DED status to particular groups of immigrants. Almost every Administration since President Eisenhower's has done so. The government generally uses DED to give relief to nationals of a specific country who are unable to return due to conditions in that country. Courts have held that the decision to grant DED is within the Secretary's power to enforce immigration laws.
Temporary Protected Status (TPS), which Congress created in 1990, has largely replaced DED. TPS grants residence and work permission to all eligible nationals from a designated country for a period of between six and 18 months. The government grants TPS only to nationals of a foreign country that is experiencing armed conflict, a natural disaster, or some other "extraordinary" condition that makes it unsafe. Following the creation of TPS, presidents have continued to use DED to grant relief to individuals whose TPS status has expired. The most notable historical example of this was when President Bush granted TPS status to Salvadorans. In 1990, Salvadorans were among the first group eligible for TPS. Although TPS ended in 1992, Salvadorans were allowed to stay in the US under the DED program. Once DED status ended in 1996, Salvadorans were able to apply for political asylum. Today, many of these Salvadoran immigrants who benefitted from TPS in 1990 are Legal Permanent Residents or naturalized U.S. Citizens. Most recently, President Obama granted DED status to Liberians whose TPS status had expired.
Additionally, President Obama has other options in his capacity as the Executive Branch of government. It is fully in his authority to end the Secure Communities Deportation program, which allows the Department of Homeland Security to access fingerprints taken by local police and has empowered sheriffs like Joe Arpaio to violate civil rights. On a local level, many community and policy groups are leading efforts to limit the damage of this program. Just two weeks ago, Governor Brown signed the TRUST Act. Under this law, undocumented immigrants would have to be charged with or convicted of a serious offense to be eligible for a 48-hour hold and transfer to U.S. immigration authorities for possible deportation. The National Day Laborer Organizing Network (NDLON), the California Immigrant Policy Center, and Asian Americans Advancing Justice (Asian Law Caucus) and a statewide coalition led the effort to this important victory. It is also within the president's authority to end the deportation quota that his administration has set -- currently at 400,000 people per year -- and reduce the number of paper raids on employers to decrease the sting of attrition on immigrants.
Finally, section 245(i) of the Immigration and Nationality Act is a special provision of law that promotes family unity by allowing immediate relatives of US Citizens or Legal Permanent Residents to petition to adjust their status while residing in the US, rather than in their home countries. But the sunset provision of this law expired on April 30, 2001. Those who missed the deadline are no longer be eligible to take advantage of it; they now must attempt to make changes in their statuses from their home countries. Absent other major changes in the current immigration system, re-issuing section 245(i) would avoid indefinite wait times abroad and help clear the family-based visa backlogs.
It would require a full legal memorandum to provide an in-depth analysis of these legal arguments. Instead, my intent here is to highlight that the president has many tools at his disposal to provide temporary relief to immigrants in the U.S. A series of executive orders could make undocumented immigrants eligible for administrative relief and work authorization. This is not a legalization process or a pathway to citizenship, and it does not provide a comprehensive overhaul of the immigration system, but in the midst of the current political climate in Washington, this is a strategy worth considering. With the record levels of deportations and separations of families, we are in the midst of a humanitarian crisis. It is our responsibility to fight for policies that will address this crisis as we continue on with the bigger fight to bring broad reforms with a path to citizenship for our broken immigration system.