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On November 20, President Barack Obama touched off a political firestorm with his controversial signing of an executive order on immigration, allowing up to 5 million undocumented immigrants to apply for work permits and a temporary reprieve from deportation.
“Every president has used one or the other form of such discretion since the enactment of the Immigration and Nationality Act in 1952,” said Professor Michael A. Olivas of the University of Houston Law Center. “[Obama] has provided lawful presence for these recipients, which will delay any deportation actions, but he has not regularized their status.”
Olivas will be among a panel of immigration law experts who will explore the president’s recent executive decision at the American Bar Association Midyear Meeting in Houston. “Executive Action in Immigration Law, Pros and Cons,” sponsored by the ABA Commission on Hispanic Legal Rights & Responsibilities and the ABA Commission on Immigration, will take place from 10 – 11:30 a.m. on Saturday, Feb. 7, at the George R. Brown Convention Center.
Obama’s plan includes Deferred Action for Parental Accountability—a program that would allow undocumented parents of Americans and U.S. legal permanent residents to obtain temporary work authorization to remain in the country—and an expansion of the 2012 Deferred Action for Childhood Arrivals policy, which provides similar relief to immigrants brought illegally to the United States as children.
While at least three lawsuits have been filed to challenge DACA or DAPA, two of the three cases have been dismissed, and the prospects for the third one are not much better, experts say.
“The court challenges are politically motivated, publicity-driven vehicles to obtain media attention rather than serious attempts to vindicate constitutional principles or shape federal policy that is respectful of individual rights," said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund, who will join Olivas on the panel. “There are serious defects of standing and justifiability in the filed challenges, and the bar should have serious concerns about the federal courts being thrust into political controversies by warring government factions.”
While some legal experts say the president’s executive action is legal and well within his authority to set priorities over immigration matters, 26 states, led by Texas, allege that the president has violated the Constitution and are challenging his actions by seeking to block the immigration changes from taking effect.
“They essentially have argued that the president has exceeded his authority, has legislated, or has not cared to execute the current laws; nonetheless, it is quite clear that the president’s use of prosecutorial discretion in fashioning DACA and its 2014 extensions … are constitutional and will be upheld by the various courts that have not already dismissed the various challenges,” Olivas said.
While Obama has called for comprehensive immigration reform, since taking office, he has deported or removed more than 400,000 immigrants annually, far exceeding the numbers of any other U.S. president.
“We can and should expect more responsible engagement in the business of crafting longterm legislated changes to what is almost universally seen as a broken current immigration system,” Saenz said. “We should urge congressional engagement and action instead of condoning palpable misuse of the judicial branch.”
Legal experts say many of the DACA and DAPA applicants will have complex cases and require technical assistance. While legal representation is not needed in most cases (more than 620,000 have been adjudicated in the first two years), some applicants will need formal legal representation.
“Through NGOs, bar associations and law school clinics, all lawyers could contribute such assistance to potential applicants, and could volunteer to assist in raising funds for the applicants who cannot afford the $465 fees needed to apply,” said Olivas.