Does Obama Have Authority to Stop the Deportation of All Undocumented Immigrants?

By Reuben S. Seguritan

August 20, 2014

As House Republicans closed its doors to any possible compromise on immigration reform, the President announced in a press conference recently that he will act on his own to address the issue.

Presidential action, according to sources from the White House, would include measures that would provide temporary relief to a significant number of the 11 million undocumented in the country. The measures would presumably allow them to remain in the U.S. without fear of deportation and provide them with work permits.

House Republicans have accused the President of overstepping his authority with his executive orders. They even approved a lawsuit against the President for abuse of authority in the implementation of the Affordable Care Act. As to the President’s intention to use his executive power to unilaterally provide a solution on immigration, Senator Jeff Session (R-Alabama) stated that the President cannot do this and that a large-scale “administrative amnesty” would prompt confrontation with Congress.

While it is true that the President cannot grant legal status to the undocumented, the President by virtue of his office has executive authority to grant the undocumented temporary reprieve from deportation as part of his “prosecutorial discretion.”

The executive branch is charged with the implementation of immigration laws and has the duty to exercise “prosecutorial discretion” in its enforcement. “Prosecutorial discretion” is the authority of an enforcement agency or officer to decide whether to enforce the law against an individual.

The Department of Homeland Security (DHS) has issued several internal memos which deal with prosecutorial discretion. In June 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued a memo instructing ICE agents and officers to avoid deportation of “low priority” or non-criminal aliens and prioritize deportation of aliens who have been charged or convicted of crimes and those who pose a threat to public safety.

It called on enforcement officers to regularly exercise their discretion to prioritize the use of the agency’s limited resources. However, reports show that the memo has been widely ignored by enforcement officers.

Deferred Action is a form of prosecutorial discretion where the DHS may grant temporary relief from deportation when it determines that enforcement is not warranted for that particular time.

This authority springs from the Immigration and Nationality Act (INA) which sets forth its overall authority for immigration enforcement. Beneficiaries of deferred action do not attain legal status; however, regulations allow the DHS to grant travel authorization as well as work permits for a specified period of time.

The DHS granted deferred action to certain categories of individuals in the past such as battered individuals under the Violence Against Women Act and potential U visa beneficiaries before regulations were put in place.

Nurses, who had not passed their licensure exam, were also beneficiaries of deferred action. In 1977, I was the lawyer of the National Alliance for Fair Licensure of Foreign Nurse Graduates which obtained for these nurses, who were under deportation threat, “deferred voluntary departure status” and this halted their deportation and allowed them to work and be reinstated to H-1 status.

Widows or widowers of U.S. citizens who were married less than two years at the time of death of their U.S. citizen spouse and who were residing in the U.S. at that time were also granted deferred action in June 2009 to allow them to remain in the country while obtaining legal status. And most recently, qualified young undocumented immigrants who were brought in the U.S. as kids benefited from President Obama’s Deferred Action for Childhood Arrivals (DACA) program.

House Republicans will without doubt oppose efforts similar to the DACA program and accuse the President of overreaching his executive authority. Presently, the Obama administration is studying measures which would provide similar relief granted to DACA recipients to a broader population of undocumented immigrants.

While it may seem that House Republicans have succeeded in impeding the passing of any kind of immigration bill in the Congress, they simply cannot stop the President from exercising his constitutional authority to deal with immigration.