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What Can President Obama Do Since Congress Won’t Act On Immigration

It is widely expected that President Obama will soon use his executive authority to deal with two major immigration problems that require immediate action.  One of the problems is the crisis involving tens of thousands of unaccompanied children and families from Central America who have crossed our southern border since last October.  The other problem, which has existed for a much longer period, concerns the 11 million undocumented immigrants waiting for comprehensive immigration reform.  The Senate and House of Representatives have been unable to agree on any legislation for the President to sign that would resolve these problems.  With Congress now adjourned for a 5-week summer recess, President Obama has announced he feels compelled to take action now without Congress.  

The question on everyone’s mind is: What will President Obama decide to do?   To date, the Obama administration has not announced any details.  This has led to much speculation in the news media.  While Congress does have more power under the Constitution to shape our immigration laws and policies than the executive branch, President Obama has the executive authority to make a real difference for millions of undocumented immigrants.  It is ironic that during their unproductive deliberations on how to respond to the President’s request for $3.7 billion in emergency funds for the border crisis, some House GOP leaders asserted publicly that the President could and should take action.  Needless to say, there is a wide gulf between the views of the President and GOP on how executive authority should be exercised on immigration matters.  

Due to the failure of Congress to approve emergency funds for the border crisis, President Obama has to cobble together a remedy for this problem.  One aspect of it is that the funds of the Department of Health and Human Services are being depleted by the need to care for unaccompanied children in shelters and to place them with sponsors across the United States.  It has been reported that Immigration and Customs Enforcement (ICE) will run out of money this month and Customs and Border Protection (CBP) will run short of money in September.   The border crisis is straining the resources of the already backlogged immigration courts.   It should be noted that $45 million of the $3.7 billion request requested by President Obama would have been used to hire more immigration judges to deal with the rapidly increasing backlog of cases.  The Obama administration will have no choice but to divert money from other budgets and to accept larger backlogs in processing cases.   

On the larger problem of the 11 million undocumented immigrants, pressure from advocacy groups on President Obama to change immigration policy has been intense.  It has been so ever since the GOP-dominated House of Representatives made clear its opposition to adopting anything like the Comprehensive Immigration Reform bill (S. 744) passed by the U.S. Senate in June 2013.   Speculation about Obama’s possible policy changes was fanned with the announcement on March 13, 2014, that President Obama had directed the Secretary of Homeland Security, Jeh C. Johnson, to conduct a review of deportation policies and practices.  The pressure and speculation ratcheted up further when the Obama Administration reaffirmed its commitment on August 1 to take action by the end of this summer.  Two policy changes thought to be strong possibilities revolve around deferred action and parole-in place programs.  

A decision by Obama to broaden eligibility for deferred action is widely expected among immigration practitioners and advocates.  Basically, it would build upon the framework of the DACA program established in 2012, which stands for Deferred Action for Childhood Arrivals.   Under DACA, prosecutorial discretion is offered on a case-by-case basis to individuals less than 31 years old as of June 15, 2012, who have no legal status and who had arrived in the United States before their 16th birthday.  Under DACA, deferred action status with work authorization is provided for a period of two years, subject to renewal.   It is rumored that President Obama will broaden eligibility for deferred action status to (1) parents with children who qualified for deferred action under DACA and (2) the parents of U.S. citizen children.   These parents would become eligible for work authorization, which would allow them to obtain driver licenses and free them from relying on disadvantageous, off-the-books employment.  It is estimated that the extension of deferred action to such parents would benefit millions.   

A less talked-about option for President Obama would be to expand the Parole in Place (PIP) program.  In its present form, the PIP program is limited to immigrants who are the spouses, parents, and children of American citizens who are active or former members of the U.S. Armed Forces.  Under the PIP program, they can become eligible for green cards without having to go back to their home countries for consular processing, which could trigger 3- or 10-year bars to re-entry depending on how long they were illegally present in the United States.  Under a theoretically expanded Parole-in-Place program, minor children, parents or spouses of ALL U.S. citizens could benefit.   Some legal experts believe Obama does not need Congress to pass any legislation to expand the Parole-in-Place program in this way.   It is estimated that millions of immigrants could benefit from it.  

The President has the power to make these and other policy changes that may permit millions of immigrants to gain legal status, but he lacks the authority to grant these immigrants lawful permanent residency or U.S. citizenship.  For many of them, deferred action status would be temporary and would be subject to withdrawal at the whim of whoever succeeds Obama as President.   Also, deferred action status could be terminated through legislation.   It should be noted that the GOP-dominated House of Representatives passed a bill (H.R. 5272) on August 1, 2014, aimed at terminating the DACA program.  Although H.R. 5272 has zero chance of being adopted by the Senate and signed into law by President Obama, this legislation highlights the precarious status of undocumented immigrants.  The takeaway from this is that while executive action by Obama may help for now, the enactment of comprehensive immigration reform is the much better solution.  

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