The Obama administration has announced that it will allow some young undocumented immigrants to remain in the United States. In response, right-wing bloggers are falsely suggesting that this policy change is evidence that President Obama is “putting politics above national security and the rule of law” and “acting like a king.” In fact, the change is an exercise of prosecutorial discretion that is consistent with the current law and has decades of precedent.
DHS Announces It Will Exercise Prosecutorial Discretion To Allow Young Immigrants To Remain In The U.S.
Secretary Napolitano: U.S. Will Allow Certain Young People Brought To U.S. As Children To Apply To Remain In The Country. From a press release by Department of Homeland Security Secretary Janet Napolitano:
Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.
Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurancethat all such requests will be granted.The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. [Department of Homeland Security, 6/15/12]
Right-Wing Bloggers Falsely Suggest Policy Change Is Lawless
Michelle Malkin: New Policy “Put[s] Politics Above National Security And The Rule Of Law.” In a blog post, columnist and Fox News contributor Michelle Malkin wrote:
Call it Occupy Open Borders.
Illegal alien students have been agitating for decades for the implementation of the DREAM Act. Congress has rejected it every time. President Obama has indulged them instead with piecemeal amnesty and orders of non-enforcement like last summer's illegal alien deportation waivers. But it still wasn't enough. So, this week they pulled stunts like this.
Putting politics above national security and the rule of law.
Same as it ever was. [MichelleMalkin.com, 6/15/12]
Ace Of Spades: “Constitution? Never Heard Of It.” From a post on Ace of Spades HQ by DrewM.:
More details soon but it looks like “young” people who came here as kids will get work permits, no path to citizenship.
Stand by for details.
Constitution? Never heard of it.
Politically it's brilliant. It will energize his base and force the GOP to talk about being anti-DREAM Act and anti-illegal immigrant.
Congress rejected the full on DREAM Act and this more modest proposal was basically the Rubio plan that was going to be introduced as legislation at some point. But who needs Congress, right? They just get in the way. [Ace of Spades HQ, 6/15/12]
American Thinker: Obama “Sure Is Acting Like A King, Isn't He?” From an American Thinker post:
Can he really do this without the permission of Congress? Doesn't matter. “I won,” he told us, remember?
This kind of pandering to Hispanics could win him the election. In states like Florida, Virginia, Colorado, New Mexico, and Nevada, where Hispanics are a growing part of the electorate, this sort of action could tip the balance in his favor - especially since all of those states are expected to be close.
I'm pretty sure Congress is going to challenge his ability to declare one set of illegals not illegal, and keep the rest of illegals, illegal. Perhaps Obama has mistaken that cardboard crown he got from his last trip to Burger King for the real thing.
He sure is acting like a king, isn't he? [American Thinker, 6/15/12]
In Fact, DHS' Exercise Of Prosecutorial Discretion Is Perfectly Consistent With Current Law
Expert: “All Law Enforcement Agencies” Have Prosecutorial Discretion, “Including Those That Enforce Immigration Laws.” From a report by American Immigration Lawyers Association president David Leopold:
Prosecutorial discretion is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The exercise of discretion is central to American law enforcement and upholding the rule of law. All law enforcement agencies, including those that enforce immigration laws, have the authority to decide who within their jurisdictions to investigate, arrest, detain charge, and prosecute. When it comes to immigration law, the exercise of prosecutorial discretion not only conserves limited enforcement resources, but also protects core American values of humanitarianism and fairness. [AILA.org, 5/16/11]
Immigration Authorities Have Been Using Prosecutorial Discretion To Stop Deportation Proceedings For More Than 30 Years. In a 2009 article, Penn State law professor Shaba Sivaprasad Wadhia stated that in the immigration context, “The use of prosecutorial discretion ... was revealed by INS in 1975 as a consequence of a lawsuit involving John Lennon and Yoko Ono.” Wadhia added that before 1975, prosecutorial discretion “was a secret operation of the INS.” [The Role of Prosecutorial Discretion in Immigration Law, Connecticut Public Interest Law Journal, 9/21/09]
By 1975, Immigration Officials Were Factoring Humanitarian Considerations, Youth, And Longtime Presence In U.S. Into Immigration Cases. Wadhia stated that in 1975, the government issued instructions stating that if deportation of a person was “unconscionable because of the existence of appealing humanitarian factors,” government officials should not deport that person. Other factors to consider while exercising prosecutorial discretion included “advanced or tender age” and “many years' presence in the United States.” [The Role of Prosecutorial Discretion in Immigration Law, Connecticut Public Interest Law Journal, 9/21/09]
DHS Policy Is Consistent With Decades Of Immigration Law
Secretary Napolitano Has Announced That Immigrants Who Came To The U.S. As Young Children Can Apply For “Deferred Action” And Receive Work Authorization. From a press release by Department of Homeland Security Janet Napolitano:
Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. [Department of Homeland Security, 6/15/12]
U.S. Has Used Deferred Action To Halt Immigration Cases “For Decades.” From a 2011 report by Citizens and Immigration Services Ombudsman January Contreras:
For decades the U.S. Immigration and Naturalization Service (INS), followed by the Department of Homeland Security (DHS), has used deferred action to provide limited relief to foreign nationals who do not qualify for other immigration benefits that are typically available to individuals in exigent circumstances. Upon creation of the DHS in 2003, the power to grant deferred action was formally delegated to U.S. Citizenship and Immigration Services (USCIS), as well as U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). [Citizen and Immigration Services Ombudsman report on deferred action, 7/11/11]
- The Bush Administration Formally Delegated The Power To Grant Deferred Action To DHS Agencies In 2003. [Citizen and Immigration Services Ombudsman report on deferred action, 7/11/11]
For Decades, Any Undocumented Immigrant Who Receives Deferred Action Have Been Authorized To Work In The United States. A 1989 version of the Code of Federal Regulations states that among the noncitizens authorized to accept employment are people “who ha[ve] been granted deferred action ... if the alien establishes an economic necessity for employment.” [1989 version of 8 C.F.R. § 274a.13, 1/1/89, via Google Books]
- Provision For Immigrants Who Receive Deferred Action Remains In Effect Today. [8 C.F.R. § 274a.12, accessed 6/15/12]