by Linda Vega (re-posted with permission of the author and Latinos Ready to Vote)
President Obama’s “new” found voice by way of his Executive Power, is a 180 degree change from a speech where he stated that as President, he had to enforce the laws on the books and that he could do nothing else to help the plight of the undocumented youth in the U.S., whose Latino population exists in the hundreds of thousands. This power that he previously said that he didn’t have, is now conveniently discovered by way of the Napolitano Memo, five months before the November election and is expected to “temporarily” offer a band-aid fix, to a problem that has this country in a state of limbo.
The Napolitano Memo also comes after Obama received a letter about two weeks ago signed by nearly 100 law professors, who offered a strategy to President Obama outlining his authority to provide temporary relief from deportation. The announcement also comes on the thirtieth anniversary of the Supreme Court’s decision in Plyler v. Doe, which held that states cannot exclude undocumented children from elementary and secondary schools.
Deferred action exists under, the Immigration and Nationality Act (INA), §103(a), USC 8 §1103 and states that
“The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”
By way of the Executive Power, the Supreme Court has ruled that the President will grant power to its administrative agencies so as to enforce certain laws. Additionally, depending on the timing, the deferred action can prevent someone from being placed in removal proceedings, suspend a current deportation order, or stay an existing deportation order. What the Memo Directive does not provide, is a way to change or adjust status under deferred action.
In using his executive power, Obama is not circumventing the law, but he is conveniently using it, by way of the Attorney General and the Department of Homeland Security at a time when he seeks to desperately keep Latinos on his side with “nuggets” of empty promises. Previously, Obama never pushed for immigration reform in 2008 or thereafter. He taunted the hopeful by stating that he would pass the Dream Act if placed on his desk, but never lifted a finger to fight for it.
The Napolitano Memo is also at the heels of criticism for the Morton Memo, put in place one year to date, which was supposed to use Prosecutorial Discretion to prevent low priority cases from being placed in deportation proceedings. This was supposed to have included the young immigrants without a criminal record and who were currently in school. But the Morton Memo failed to give any type of relief as ongoing review of pending removal cases yielded disappointing results and cases continued to surface, of immigrants being denied prosecutorial discretion despite compelling circumstances.
When Senator Rubio introduced the idea of a new “Dream Act” version, which by the way is very similar to what this “memo” of deferred action seems to say, the President did not applaud the Senator for attempting to help the youth. He instead, laughed during an interview and stated that he (the President) would work on immigration in the next five years. And so, for the next few years, Latinos can expect “nuggets” of promises to be thrown our way.
This outreach is temporary and is a promise to the Latino community that the youth will be out of harm’s way, for the moment. This Memo is slight power that now is distributed to agencies by way of the Attorney General, and is applied in a discretionary fashion. For now it is temporary and fails to address what will happen to the young adults in a few years after they age-out or cannot travel, or adjust their status. For now, everyone is on board, but the after affects when felt, will stir us to ask why didn’t we fight for more?
Senator Rubio’s version was more plausible because it sought to go through the proper channels to have the Dream Act become Congressional Law. The law would have allowed the youth to become educated and then follow through to a non-immigrant visa that would have placed them in line for receiving their Legal Permanent Residency. It would have created a set of educated, high tax payers, who could have become part of our society and eventually become U.S. Citizens by competing for it.
The Napolitano Memo is Administrative and non-binding meaning that it can be rescinded at any time, and these Latino youth would be in the same limbo as before. Moreover, the Memo gives approximately 800,000 to 1.5 million the opportunity to apply for the deferred action if they have the following:
- immigrants may apply for a two-year renewable grant of “deferred action” if they entered the United States before age 16;
- are younger than 30;
- have lived continuously in the United States for at least five years;
- have not been convicted of a felony or significant misdemeanor; and are currently in school, have graduated from high school or earned a GED, or served in the military.
First, the Memo states that all laws are to be enforced and those with the initial power to decide whether to implement the Memo for those outside the court system are CBP, USCIS, and DHS. These agencies who first encounter the youth shall have the power to use discretion as to whether the youth should be placed in removal proceedings.
Second, if the youth are currently in removal proceedings, the standard will be applied in a discretionary manner on a case by case basis, by whom is not clear. Using the criteria stated above, those making the decision will decide the fate of these youth. The many who did not finish school or were not enlisted in the military are not eligible for this temporary relief. Moreover, it is unclear whether those about to be 31 years will be in unlawful status as this deferred action does apply to them.
Finally, those who are not currently in proceedings will be eligible to apply for the deferred action through USCIS. The agency will use the criteria stated above, and use discretionary authority to decide the status of the youth. It is not for certain if the applicants will be approved or not, but it is a careful choice that the many will have to make.
If we listen to what Obama is saying, he speaks loud and clear in that he states, that this is not amnesty, it is not a benefit, and will not give the youth a path to citizenship. What it gives us is a promise that will not be a congressional “law” and may not be enforced if we use the Morton Memo as an example. He is trying to win favor by now coming forward to use powers that he had all along and has given us the Napolitano Memo that is limited. In other words, he is promising to right a wrong that he should have legally done a long time ago, again. Latinos should remind him that we are conservative when it comes to family, and will protect our children and their dreams this time around.
Linda Vega is an Immigration Attorney and Founder of Latinos Ready To Vote