What it is and what it isn’t & Prediction on Texas v. United States

by Jeff Peek, Partner

Since November 20, when the President made his announcement to expand via executive action the deferral of removal of another group of immigrants, I have been impressed at the number of questions I get from both friends and relatives, but also fellow lawyers, at what the President actually did. It would appear that in our sound-bite society, not many who aren’t directly affected by it or working in the field actually take the time to read about what it is the President did.

So in light of the ever decreasing American attention span, I give you in sound-bite format: The President’s Deferring Action for Parent’s Of Americans – What it is and what it isn’t:

    -It does allow Parents of US Citizens and Lawful Permanent Residents to apply for a “deferral” of action (basically a please don’t deport me application) to which if approved they will get a work permit and a social security card.

    -It DOES NOT allow them to become Permanent Residents, nor will it allow them to become Citizens. It also does not allow them to file for other family members. It simply allows them to work in the U.S. and be free from deportation (assuming they maintain eligibility) and have a social security card.

    -It does give them a work permit for 3 years if they can show they were

         – Physically present before January 2010, and present here since then

         – Have a US Citizen child or have a Permanent Resident child (*unclear if a child born             after 11/20/14 will still qualify a parent)

         – Have no disqualifying convictions (No DWI, no sentence of 90 days or more, no             felonies, no Domestic Violence) from at any point in your time in the U.S.

    -It does not allow them to travel outside the U.S. and to return. (*There are special travel permits awarded to some who qualify for specific approved reasons, but those are separate petitions called Advanced Parole)

On February 16, U.S. District Judge Andrew Hanen (Southern District of Texas) signed an injunction in favor of the Plaintiff’s (several U.S. States, including Texas) in the pending Texas v. United States lawsuit, forbidding the U.S. Government and its agents from carrying out the President’s proposed extension of Deferred Action to parents and additional groups of students.

It is interesting to note the judge’s reasoning for the granting injunction was in line with the Plaintiff state’s argument that their states will suffer un-reversible and incalculable harm from such a granting of Deferred Action to the parents, when 2 of the nation’s 3 largest immigration population states (California and New York) both had filed brief’s with the court arguing the exact opposite, that they stand to make money off the granting of deferred status.

In the end most legal scholars agree that the Supreme Court will continue to allow the Federal government the exclusive ability to interpret and enforce immigration laws as it sees fit, and will be granted much latitude in “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of (its) programs.” Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S. Ct. 309, 94 L. Ed. 317 (1950); Arizona v. United States., 132 S. Ct. 2492, 2499 (2012). The Supreme Court has routinely held that it is not the place of the courts to second guess these sorts of enforcement decisions, which are “generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S. Ct. 1649, 84 L. Ed. 2d. 714 (1985).

I can’t see the Supreme Court wanting to set precedent that Congress or the States can simply sue anytime they disagree with the application of a Federal law. Especially when congress has ample tools in place for the amending or passing of news laws to further define, reel in, or expand any laws to make sure the executive performs them as written. It is those remedies, not lawsuits, which congress should use. And once the smoke clears, and the final opinions are written, Deferred Action will be upheld as a legitimate us of Executive Power, and we will be 2 years down the road still without meaning immigration reform legislation from Congress. Irony being that is the one thing they could pass if they wanted to.

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