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Law and Precedent Allow Broad Presidential Action on Immigration

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The following is a press release from the National Immigration Law Center:

NILC and legal scholars discuss President Obama’s options during press briefing

President Obama has the legal authority and historical precedent to issue broad administrative relief in the area of immigration, legal scholars and practitioners agreed Wednesday during a telephonic press briefing sponsored by the National Immigration Law Center (NILC).

With the president only weeks away from announcing how he will use this executive authority, legal experts reviewed the broad range of options the president can employ, including deferred action, which is a form of prosecutorial discretion.

There are more than 20 different kinds of prosecutorial discretion in immigration law, said Prof. Shoba Sivaprasad Wadhia.

“The legal authority for immigration prosecutorial discretion is grounded in the Constitution of the United States, the immigration statute created by Congress, binding precedent from the United States Supreme Court, regulations and policy documents from the agency. One of the earliest policy documents was called an Operations Instruction and authorized deferred action in the presence of appealing humanitarian factors, like a serious medical condition,” Wadhia said. “This history and these sources of law provide a good indication that programs like [Deferred Action for Childhood Arrivals] or ones that may be announced in the future are not out of thin air.”

President Obama has made a choice as prosecutor-in-chief — as he is clearly authorized to do — to turn informal guidelines into formal procedures, in order to bring uniformity, consistency, and nondiscrimination to the immigration enforcement system, said Prof. Hiroshi Motomura, the lead author of the May 2012 letter to President Obama, signed by 95 law professors, on executive authority to grant administrative relief for immigrant youth who were brought to the U.S. as children.

“Unless you have uniform procedures — unless you have an application process and formal requirements — you are going to have tremendous inconsistency and the potential for discrimination in the field,” said Motomura. “When you have field agents who don’t like prosecutorial discretion guidelines, having a formal procedure is essential.”

Immigration lawyer Margaret Stock, who has developed groundbreaking programs in the area of legalization and citizenship, answered the critics who have floated “utterly inaccurate” arguments in order to block presidential action on immigration.

“There’s nothing new about remedies that have been discussed,” Stock said. Whether it is granting temporary protected status or refugee status in an emergency, or granting parole, legal and historic precedent are established.

“Undocumented Cubans, for decades have turned themselves in at the nearest immigration office and have been granted parole status,” Stock said. “Parole is an example of a statutory authority that has been delegated by Congress to the executive and has been exercised for decades without any outcry.”

How far can the president go?

The answer is more political than legal, said NILC Executive Director Marielena Hincapié:

“President Obama can and should undertake administrative reforms that are broad, inclusive, and that benefit a significant portion of the 11 million Americans-in-waiting. If the administration decides to make less significant administrative reforms, it will be today’s politics, not the law or historic precedent, that will have held him back,” Hincapié said.

The recording of the press briefing is available at www.nilc.org/document.html?id=1125.