LATINO VOICES
11/25/2014 06:51 pm ET Updated Nov 26, 2014

Legal Experts Say There's 'No Support' For Excluding Dreamers' Parents

Alex Wong via Getty Images

At 27, José Luis Zelaya has had four knee surgeries, all stemming from when he was 13 and traveled overland for a month and a half from Honduras to Texas in search of his mother.

Having crossed the border illegally, Zelaya doesn’t have legal status in the United States. But in 2012, he won the next best thing -- permission to stay under the policy known as “Deferred Action for Childhood Arrivals.” DACA allows Zelaya to reside and work in the U.S., at least temporarily, without fear of deportation.

Now a doctoral student in urban education at Texas A&M University, Zelaya traveled from College Station, Texas, to Washington, D.C. last week so he could be there personally when President Barack Obama announced his executive action shielding an estimated 4.4 million undocumented immigrants from deportation. Zelaya was confident that finally his mother, who is also undocumented, would receive the same relief extended to him two years ago.

“On my way over there I was very excited, very happy,” Zelaya told The Huffington Post. “I thought I was going to come back with some really great news.”

But Zelaya’s family didn't get the news they were hoping for. The new “deferred action” guidelines Obama announced on Thursday did not extend to the parents of undocumented youths like Zelaya, a group known as "Dreamers."

“I just felt this heaviness in my stomach that made me speechless,” Zelaya said. “My head started to hurt. I started to think about how I was going to tell this to my mother, how is she going to feel. It’s as if my mother didn’t count.”

A 32-page document from the Justice Department’s Office of Legal Counsel, dated Nov. 19, says that no legal basis exists for including the parents of children who are neither U.S. citizens nor legal residents. The White House cited that decision in explaining its announcement.

The OLC bases its assertion on two main points. First, the opinion says that beneficiaries of the new deferred action program should have a direct tie to a U.S. citizen or someone with legal residency who could theoretically one day sponsor them for a visa. That would satisfy the traditional value, embedded in immigration law, of keeping the families of U.S. citizens together.

Second, the opinion says that extending deferred action to parents of DACA recipients would open the door to extending relief to an unending chain of relatives -- not just to the parents, “but also to the close relatives of any alien granted deferred action through DACA or any other program, those relatives’ close relatives, and perhaps the relatives (and relatives’ relatives) of any alien granted any form of discretionary relief from removal by the Executive.”

But some legal experts question the OLC’s logic for excluding parents of Dreamers from deferred action -- though many say they understand the politics of it.

Stephen Legomsky, a professor at Washington University School of Law and former general counsel for U.S. Citizenship and Immigration Services, says that requiring a tie to a U.S. citizen or permanent resident makes no legal sense, since beneficiaries of DACA like Zelaya weren’t required to demonstrate that.

“I completely disagree with their analysis,” Legomsky told The Huffington Post. “Their entire objection rests on a legal premise that they provide no support for."

"Their premise is that it’s somehow illegal to grant deferred action to a group based on family ties, unless those family members have a path to permanent resident status," he continued. "There’s simply no basis for that assumption. In fact, they’ve approved DACA itself and with DACA people weren’t required to show any family ties at all.”

Adam Cox, a professor at New York University School of Law, echoed Legomsky’s skepticism at the idea that there's no legal grounds for including the parents of Dreamers among those eligible for deportation relief.

Cox said the OLC's line of reasoning seems incomplete because it distinguishes between parents of U.S. citizens and parents of Dreamers based on the idea that U.S. citizens could hypothetically one day apply for a visa for their parents. But, Cox said, that’s basically the same situation Dreamers themselves are in, and the government has extended deportation relief to them.

“That reasoning would call into question the legality of DACA itself," said Cox. "Yet there’s no indication that OLC thinks DACA is unlawful."

Immigration attorney David Leopold said he thought it would have been legally defensible to include the parents of Dreamers in the executive action, but that the Obama administration likely sought a higher standard because they knew they would face a political firestorm and possibly lawsuits. With the measure’s legitimacy certain to be questioned, Leopold said, the Obama administration probably didn’t just want the executive action to be legal -- they wanted it to be unassailable.

“In my view, it’s possible that the rationale could have included parents of Dreamers,” Leopold told HuffPost. “I think it would still be lawful."

"I think what was going on here was, the administration was bending over backwards to stay within the law," he went on. "The bigger the class, the more people can question.”

Some legal experts, however, said they share the views of the Office of Legal Counsel. Stephen Yale-Loehr, a law professor at Cornell University, said that including the parents of Dreamers in the new deferred action program would have been unprecedented.

“I do agree with it as a legal matter,” Yale-Loehr told HuffPost. “On the merits, a court might be more likely to strike down deferred action for parents of Dreamers because it would go too far beyond [existing] deferred action programs.”

The White House’s decision, and the OLC opinion upon which it hinged, has left people like Zelaya both optimistic and disappointed. Though his mother isn’t covered under the new rules, Zelaya urged others not to lose sight of the wider significance of Obama’s executive action for the immigrant rights movement.

“I think it’s important both for people who benefit and people who don’t to analyze this and to understand that this is historic,” Zelaya said. “This isn’t just about what the president is willing to do, it’s about people mobilizing. If we can learn from this, unite and work together, we won’t have to wait years and years for immigration reform to happen. We can make it happen.”

HuffPost

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