Tag: new immigration executive order

Executive order of prosecutorial discretion

Recently 136 law professors submitted a paper to the White House explaining that the President has legal authority to implement prosecutorial discretion without congressional approval.
The letter goes on to explain that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported.
The reason this letter is so important is that President Obama is likely to use it as his explanation when he issues and executive order on immigration. Since he does not have congressional approval, he will he need to rely on some legal argument for taking such a widespread action. The letter goes into more detail stating:
“Our letter confirms that the administration has specific legal authority to use prosecutorial discretion as a tool for protecting an individual or group from deportation,” said Wadhia. “This legal authority served as foundation for prosecutorial discretion policy across several administrations. Historically, this policy has been premised on the twin policy goals of managing limited resources and shielding people with compelling situations from removal.”
If the President relies on this letter, it is likely that deportations will stop except for aliens who have felonies. And there is a high likelihood that 5 million illegal aliens may receive work authorization based on the prosecutorial discretion powers used previously for Dream Act Kids. Dream Act Kids were able to receive employment authorization cards, renewable every two years. Once again this is not a guarantee that the President will issue an executive order, but it appears more likely than ever that something will occur after November 2014.

There is a debate on what authority President Obama has to issue an executive order on immigration. If he issues an Immigration Executive Order, it must be within the context of immigration discretion which has been used in the past. In other words, he cannot supersede any present law. He must add a certain group of illegal aliens to a previous discretionary group. The only way to fight a constitutional challenge is for the president to say that he is simply giving discretion within the law to a larger segment of illegal aliens.
This strategy will be difficult to challenge as discretion has already been given to illegal aliens. Congress would have to challenge the deferred action status which has been in effect over 20 years. This deferred action program has been granted to illegal aliens both under Democrat and Republican presidents.
Therefore, president Obama may say that he is simply expanding his discretionary powers regarding deferred action to a larger class of illegal aliens. So this deferred action strategy would be difficult to challenge as it cannot be considered a new law since the term deferred action has been used and applied to illegal aliens for over 20 years. If the Immigration Executive Order of deferred action is issued it would allow illegal aliens to have employment authorization and a social security number.

There are numerous ways in which you could do this. The prevailing theory is that he would provide 5 million people with the term of deferred action which puts people in a status in which they are not to be deported and receive employment authorization. He would provide a certain criteria such as being in the United States for the last five years or being in the United States for the last 10 years. It appears they will just pick an arbitrary date and then require undocumented aliens that they provide proof of their stay the United States. There is also speculation that the employment authorization card will have two or three year expiration date. In other words it would give 5 million undocumented immigrants legal status for two or three years and hopes that they will be immigration reform during that time.

There is a 50% chance that President Obama grants deferred action to roughly 5,000,000 people in the next month or two. It would be an executive order in the same format as Dream Act kids. In other words, he would designate a certain amount of people to receive deferred action and this would allow them to apply for employment authorization. It is most likely that they will not receive a travel document. It is still unknown of which people will be included in the 5 million. If we had to make an estimated guess the people who will be included will be people who have been in the US for at least five years and not committed any felonies. They also might be restricted to people who have either US citizen children, US citizen parents and/or US citizen brothers or sisters. Once again this is just an educated guess who would be involved in the new executive order and we should find out if this will occur in September of 2014. We will keep you updated as we get more information regarding the possible new law.

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Andrew P. Johnson - Immigration Lawyer