136 Leading Experts on Immigration Law Agree: President Has Legal Authority to Expand Relief

Entrepreneurship and Innovation Update
Entrepreneurship and Innovation Update

Released on Wed, Sep 03, 2014

Washington D.C. — U.S. law professors sent a letter today to the White House stating that President Obama has wide legal authority to make needed changes to immigration enforcement policy. The president is considering how to use his authority to mitigate the damage caused by our dysfunctional immigration system and protect certain individuals from deportation.

The letter was written by Stephen H. Legomsky, John S. Lehmann University Professor at Washington University School of Law and former U.S. Citizenship and Immigration Services (USCIS) Chief Counsel; Hiroshi Motomura, Susan Westerberg Prager Professor at UCLA School of Law; and Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar at Penn State Law. It was signed by professors from 32 states, the District of Columbia, and Puerto Rico.

“As part of the administration’s legal team that ironed out the details of DACA, I can personally attest that we took pains to make sure the program meticulously satisfied every conceivable legal requirement,” said Legomsky. “In this letter, 136 law professors who specialize in immigration reach the same conclusion and explain why similar programs would be equally lawful.” (DACA is the acronym for Deferred Action for Childhood Arrivals, the program the president initiated in June 2012.)

In their letter, the law professors point out that “The administration has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals residing in and contributing to the United States in meaningful ways.” The letter goes on to explain that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported.

“Our letter confirms that the administration has specific legal authority to use prosecutorial discretion as a tool for protecting an individual or group from deportation,” said Wadhia. “This legal authority served as foundation for prosecutorial discretion policy across several administrations. Historically, this policy has been premised on the twin policy goals of managing limited resources and shielding people with compelling situations from removal.”

This is the second major letter about prosecutorial discretion that law professors have sent to President Obama. Thefirst letter, sent in 2012, outlined the legal argument for expanded administrative relief, which later became the blueprint for the president’s DACA program. That program allows qualifying noncitizens who came to the United States as children to apply for relief from deportation and work authorization. Continue reading

The President’s Solid Ground for Executive Action on Immigration

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Comprehensive immigration reform legislation would give a majority of America’s 11 million undocumented immigrants a path to citizenship and work authorization. But with immigration reform stalled in the House, President Obama announced that he plans to “fix as much of our immigration system as I can on my own, without Congress.” The President is reportedly considering deferring the deportations of up to 5 million immigrants, starting with those with families. While most columnists have supported the President’s authority to take action, a minority have accused President Obama of “rewriting the law” and called him a “domestic Caesar.”

UCLA Professor of Law Hiroshi Motomura’s report, The President’s Discretion, Immigration Enforcement, and the Rule of Law, thoughtfully argues that President Obama has broad executive authority to defer deportations, if he so chooses. Motomura concludes that the “President has the legal authority to make a significant number of unauthorized migrants eligible for temporary relief from deportation,” “similar to the relief available under the Deferred Action for Childhood Arrivals (DACA) program.”  The technical term is “administrative action”—action by the President’s administrative agencies, such as Department of Homeland Security.

At the outset, Motomura makes clear that the President is only considering temporary reprieves from deportation. The President cannot unilaterally change the rules for granting green cards or citizenship. Nor did the President “enact” the DREAM Act when he announced DACA. While the DREAM Act would provide a path to a green card and citizenship for immigrants brought to America while children, DACA only gave them a temporary, renewable two-year reprieve. Continue reading

BIA Holds Guilty Plea Without Conviction Is Not An Admission – JD Supra Business Advisor

The Immigration and Nationality Act (INA) contains a provision making an individual inadmissible to the United States if he or she has admitted to the commission of certain crimes, including controlled substance offenses. Inadmissibility prevents an individual from being able to obtain certain immigration benefits, unless the individual can obtain a waiver. In order for an individual to trigger inadmissibility under the “admission” clause of the INA, the government must find that the essential elements of the crime were explained to the individual in layman’s terms, that the individual admitted to each element, and that the admission was voluntary and unequivocal. Further, several precedent decisions of the Board of Immigration Appeals (BIA) have held that if an admission was made as part of criminal proceedings that did not result in a conviction, the admission may not be used against the individual to trigger inadmissibility.    Continue reading

Entrepreneurship and Innovation Update – August 2014

Entrepreneurship and Innovation Update
Entrepreneurship and Innovation Update

August 2014

Latest Research

Cities and regions can make the most of immigration through local dividends. A recent statement from the Migration Policy Institute’s Transatlantic Council on Migration notes that “well-managed immigration can be a windfall for local economies by creating jobs and fueling growth, fostering innovation, and bringing in new revenue.” But, as the report notes, these benefits are not automatic nor are they evenly accrued. The statement examines ways in which policymakers at all levels can work together and launches a new series of reports on the topic of “Cities and Regions: Reaping Migration’s Local Dividends.” The series will examine “place-based immigration and entrepreneurship policies, city attractiveness, social cohesion, and means to build inclusive cities.” One of the first reports in the series explores ways in which cities and regions can have a voice in immigration policy, which is often set at the national level. Continue reading