THE LAZARUS EFFECT: HOW COMPREHENSIVE IMMIGRATION REFORM CAN SURVIVE THE HOUSE GOP AND COME BACK TO LIFE

By Gary Endelman and Cyrus D. Mehta

“The only true test of leadership is the ability to lead and lead vigorously”

President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.  

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections.  What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members.  It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party.  First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small.  It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways.  It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of  S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN.  Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or  dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of  all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized)  may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.).  Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

The President cannot grant more L-1 intra-company transferee visas but he can restore the relevancy of those that now exist by ending the war on claims of specialized knowledge. No new allowances for extraordinary ability can come through the stroke of a pen but an enlightened decision to banish the suffocating Kazarian final merits determination would give new hope to aliens who now have none but otherwise satisfy what the law requires.  Only Congress can exempt green card categories from the tender mercies of PERM but no legislative sanction is required to halt the use of audits as a tool of intimidation. The need for change should not blind us to the ample opportunities for remediation that the present law affords.  As valuable as comprehensive reform is, as badly needed as the benefits it will bring most surely are, no law will succeed if those who enforce and interpret it lack the moral courage and political will to usher in a newer world. As that fan of Tudor prerogative told us long ago in no less contentious times, “the fault dear Brutus is not in our stars but in ourselves.”

(Guest author Gary Endelman is Senior Counsel at FosterQuan)

FEWER PEOPLE TO GET DEPORTED UNDER NEW POLICY: HAS THE ADMINISTRATION FINALLY COME TO ITS SENSES?

By Cyrus Mehta

The Department of Homeland Security in a letter addressed to Senator Durbin and 21 other senators announced on August 18, 2011 a new policy that would identify low priority removal cases for the exercise of prosecutorial discretion. According to a New York Times story, the beneficiaries of such discretion would also be able to obtain work permits.

This is a refreshingly positive development, and shows that the Obama administration may have hopefully finally come to its senses. At a time when Congress is in a stalemate, and it has been acknowledged that 12+ million people cannot be deported, the administration has used its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans. On first impression, the new policy appears to be a mere promotion of the Morton Memo of June 17, 2011 on prosecutorial discretion. It does not grant relief on a broad scale, and it appears, if put into effect as promised, that it will probably only assist people on a case by case basis who are already in removal proceedings or will be placed in such proceedings. According to Senator Durbin’s website, this is how the new process will work:

Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

On the other hand, the new policy involves an inter-agency effort to identify the low priority cases. Under the Morton Memo, only ICE was charged with the responsibility of exercising prosecutorial discretion, and it seemed unlikely that all ICE officials in the field would follow the new mandate. Indeed, there was already a rebellion within the rank and file of ICE against the Morton Memo. The latest inter-agency initiative refreshingly also involves Immigration Judges at the Executive Office for Immigration Review, who could probably coax the ICE prosecuting attorney to terminate a deserving low priority case and take it off their tremendously clogged court calendar. The new initiative ought to also deeply involve the USCIS. Although the USCIS’s mandate is to grant immigration benefits rather than enforce the law, the USCIS is also authorized to issue Notice to Appears upon a denial of a benefits application. If the USCIS applies discretion earlier on, fewer low priority individuals will be placed in removal proceedings in the first place.

Most problematic at this stage with the new policy, as noted by DREAM activist and law student Prerna Lal, who is herself in deportation is that it may not assist those who are in a legal limbo. These are undocumented individuals who have not yet come on the radar of DHS to even be considered being placed in removal proceedings. We surely do not want to encourage the perverse effect of such people coming forward and attempting to be placed in removal proceedings (by say filing a frivolous asylum application) solely to be considered for prosecutorial discretion. This would also defeat the purpose of the new policy as it will create more work than necessary to process people for removal and then consider them under the new policy for prosecutorial discretion. Indeed, the next logical step for the Obama administration and DHS is to affirmatively grant deferred action, parole and work permits to people in legal limbo who can come forward if they meet the same low priority criteria as those who are in removal proceedings or about to be put into these proceedings. The government does have the power to exercise such discretion under the existing provisions of the Immigration and Nationality Act. Gary Endelman and Cyrus Mehta in a prior blog have outlined a blueprint for undocumented individuals to be affirmatively granted administrative relief, See Keeping Hope Alive, President Obama Can Use His Executive Power Until Congress Passes The Dream Act, http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html.

Critics of the use of prosecutorial discretion such as House Judiciary Chairman Lamar Smith will argue that the President is not faithfully implementing the law. This would be a valid position if our immigration laws were rational and not broken. The reason why we have such a huge undocumented population is because our outdated laws are broken, and have not been able to provide sufficient pathways for people who need to unite with family members in the US . The existing legal framework also deprives employers from being able to effectively sponsor them for work permits or green cards. Moreover, the President is not bypassing Congress by creating a new class of permanent residence. In exercising prosecutorial discretion, the President is merely refraining from deporting low priority individuals, and using his power within the INA to grant administrative relief such as a work permits, parole or deferred action. If Mr. Smith were to have his way through the passage of the HALT Act, which would remove all discretion from the administration, our immigration law would be even more broken, and the undocumented population would continue to build without being able to benefit the US.

KEEPING HOPE ALIVE: PRESIDENT OBAMA CAN USE HIS EXECUTIVE POWER UNTIL CONGRESS PASSES THE DREAM ACT

By Gary Endelman and Cyrus D. Mehta

We are all extremely disappointed that the Senate blocked the DREAM Act on December 18. Even though a majority of the Senate voted for cloture, it was not enough. We need 60 votes for legislation to move forward, even when we have a majority of 55 out of 100. But do we need to wait endlessly for Congress to act? The answer is NO! Faced with unrelenting opposition from a radicalized Republican party that has declared war on immigrants, the Obama Administration is not powerless if it has the vision and the will to act.

We demonstrated in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz, that it is possible for the Executive to legalize the status of non-citizens without Congressional intervention to achieve something close to CIR. Our proposal for administrative solutions has become all the more relevant now that Congress has not passed the DREAM Act. DREAMERS must still lobby the administration for relief, which is has the ability to grant without going to Congress. Yes, the President does indeed have power to grant benefits administratively, such as parole and employment authorization. The Executive, under INA § 212(d)(5), has the authority to grant parole for urgent humanitarian reasons or significant public benefits. http://cyrusmehta.blogspot.com/2010/04/comprehensive-immigration-reform.html. Talented and dedicated DREAMERS who go to college, serve in the military or perform work of national importance under civilian direction are ideal candidates for invoking § 212(d)(5) under “urgent humanitarian reasons or significant public benefits.” Similarly, the Executive has the authority to grant employment authorization under INA §274A(h)(3), which defines the term “unauthorized alien” as one who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General." Under sub paragraph (B), the USCIS may grant an EAD to DREAM kids who inadvertently fell out of status for no fault of their own and who only know America as their country.

The Executive’s use of parole, sua sponte, in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict comes readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. DREAM kids need not wait an eternity for Congress to come to the rescue.

The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien. Deferred Action is purely discretionary. They are both informal ways to allow continued presence in the United States. The INA never mentions deferred action. Neither does deferred action depends upon regulation. Deferred action is not mentioned in Title 8 of the Code of Federal Regulations but only in the old, and now inapplicable, Operations Instructions. The exercise of prosecutorial discretion to grant deferred action status is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport DREAM kids who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students.

Deferred Action has also been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. Mr. Neufeld’s memo, issued on June 15, 2009, provides extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries may request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow who was married less than two years at the time of the citizen’s death to apply for permanent residence.

How about parole in place? Unaccompanied minors brought as young children to the United States without inspection deserve such relief. Take a look at Section 235(a)(1) of the INA. Know what it says? It reminds us that these DREAMERS who are physically in this country without formal inspection or legal admission can be deemed to be applicants for admission. That is how “parole in place” works. By indulging in the legal fiction that these DREAMERS are actually knocking at the golden door and asking to be let in, the Obama Administration can make them eligible for adjustment of status to legal permanent residen (if they qualify as immediate relatives, such as a spouse of a US citizen) through expansion of the parole mechanism. The USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US.

Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to the DREAM Act and even Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine. While some may argue that there is no express Congressional authorization for the Executive to enact such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

There is no bar in law or logic to a decision by the Department of Homeland Security that it will not seek to deport or remove anyone here without color of law who would qualify for DREAM Act benefits. Only in those instances where relief was available would ICE issue a Notice To Appear. Refraining from seeking removal of DREAMERS in the public interest would be entirely consistent with the reasons why the Administration lobbied the Congress so hard in the first place and hopefully will continue to do so. Be prepared for Steve King, Lamar Smith and their nativist allies in the Senate to react. They can threaten to use the power of the purse to curb these regulatory initiatives. Be strong and of good courage! Mr. President, keep your veto pen close at hand. Until we get a new law, justice will have to be squeezed out of the one we have now. The fact that Congress will not act does not mean that the DREAM is dead; it simply is deferred, while we go about its realization by other means.