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View from a lawyer on Obama's immigration action.

President Obama addressed the nation last night in an effort to fix our broken immigration system.  Immediately the reaction has ranged from jubilation to constitutional crisis.  So what did the President do and could he lawfully do it?

A helpful infographic highlights the four actions the President is taking:

1.  ACTION:  Increased Border Security.  The most recent statistics demonstrate we have a net zero migration – we have as many people leaving the country as we do entering the country.  We need a secure border so we can better regulate who is entering the country but our long term growth will require an influx of immigrants.  Obama’s allocation of resources to the border is a temporary fix but will not serve our long-term interest.

LEGALITY:  The Executive Branch deploys federal law enforcement resources so this is well within the powers of the president.  Congress controls the purse and so they could cut the funding for this effort but this is one area both parties are likely to agree.

2.  ACTION:  Focused Deportation Efforts.  As President Obama stated – “Deport felons not families.  Criminals not children.”  As the President said it is physically impossible to go door to door checking identifications in a concerted effort to deport nearly 12 million people.  Blame who you want for the problem, but mass deportation is not remotely feasible and neither does it represent the character of Americans.

LEGALITY:  This is prosecutorial discretion.  You will hear some news pundits correctly reference this doctrine in the law.  Law enforcement does this every day.  With limited resources do you pursue every jay walker or do you focus on armed robbery, murder, drug trafficking, etc.    One can always disagree with where law enforcement places that emphasis.  I personally disagree with many municipalities that are allocating resources for the removal of homeless people from public places.  I think there are more important issues to focus on.  Others could say the same of the president’s action – but it is lawful.  Some think every jay walking immigrant should be deported because they violated the law (the violation is actually roughly equivalent to jay walking), but the President is focusing on those who entered this country and then committed a serious crime within our borders.

3.  ACTION:  Expand work authorization for skilled workers awaiting a green card.  Interestingly missing in the immigration debate is the millions of people here unlawfully because of overstays of visas (between 40-45% of illegal immigrants).  Hopefully politicians realize the immigration problem is far from a southern border problem.  Many enter the country lawfully but then are unable to adjust their status and become undocumented.  This includes highly skilled students who want to stay in the country following graduation but are unable to adjust their status.  Obama wants to extend work authorization to these individuals so they do not have to leave the country.

LEGALITY:  Interestingly this is not likely to stir controversy and yet the legal basis is the exact same as for other “deferred action”.  The President is NOT adjusting the status of these highly skilled workers he is merely not taking action to deport.  Anyone in deferred action can apply for a work permit.  These individuals will still need to go through the process of adjusting their status if they can which is not an easy task in our broken system.

4.  ACTION:  Deferred Action for Parents of Citizens.  This is the issue that raises the ire of opponents.  Partly because more than 4 million people will be impacted.  Specifically if a parent has been in the United States more than 5 years, have a U. S. Citizen child, have no criminal record, and can demonstrate an ability to work and pay taxes they will become eligible for a deferred action status.  Deferred action is a temporary status and merely means the person is not a priority for deportation.  However the law allows that once someone is here temporarily we want them to work and pay taxes so they are granted by the U.S. Code a temporary work permit.

LEGALITY:  The ink is still wet on this Executive Action.  The Executive Branch is charged with enforcing the laws of the United States and because this action provides NO lawful status, NO basis for adjusting one’s status, this would clearly be within the President’s authority.  The President correctly stated this places a priority on removing fear from families so they can stay intact.  The President is simply saying his administration which has deported the most immigrants will stop deporting family members of U.S. Citizens who have played by the rules for at least five years.

President Obama correctly challenged Congress to take action if they disagree with him.  The actions of the President are lawful and temporary.  In my opinion they are an important step in the right direction but any fix must come from Congress.  In the month ahead as the paperwork for processing is put together and the details become apparent it will be critically important for the church and people of faith to step into the gap to welcome the stranger.  There will be those who will seek to take advantage of this law to make money off of the hope that it engenders.  We need to communicate the facts, make certain someone is eligible and that they understand the temporary nature of this status and the inherent risk as a result.  We need to help them navigate the forms and processes and that should ONLY be done by a lawyer or BIA certified representative.

Let’s know the facts not the spin and let’s welcome the stranger as we hear Jesus voice and

Go and Do Likewise!

 

 

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