END OF THE YEAR IMMIGRATION REFORM?

I have been taking calls for the past couple of weeks from clients and prospective clients asking me whether I believe that an "amnesty" is going to be passed into law by the end of 2014.  Given all of the discussion which has been taking place in the media recently regarding immigration reform, I will attempt to weigh in for what its worth.

Amnesty is probably not the correct word to describe what President Obama appears to be contemplating in regard to immigration reform.  Traditionally, in the U.S., an amnesty has been a vehicle by which undocumented aliens go from their undocumented status to some form of lawful temporary or permanent resident status.  Presently, there does not appear to be the political will for such a bold measure, and the Democrats and Republicans (who would have to come to a meeting of the minds on this issue) are very far apart.  It is for this reason, that the President is attempting to go it alone, but in doing so, finds himself significantly limited in what he might accomplish.

The President can issue executive orders in carrying out his traditional functions (which include the enforcement and administration of the nation's immigration laws).  The Deferred Action for Childhood Arrivals (DACA) program is a prime example of the President acting unilaterally, but lawfully, to ease the burdens and fears of young people who have grown up undocumented in America, by ushering them into some sense of normalcy and security.  The President, through his Attorney General (AG) may also interpret or re-interpret immigration case law, which has a tremendous impact on how certain applications for immigration relief are interpreted and adjudicated. He is not overstepping or (Lord Help us) committing any impeachable offenses in carrying out these functions.  The Prosecutorial Discretion (PD) which under President Obama has been exercised to re-prioritize the nation's removal priorities (placing criminal aliens at the top of the list for removal and non-criminal aliens with children or other immediate family members born in the US or who are Lawful Permanent Residents at the bottom of that list) has been exercised to some extent by prior presidents.

It looks like the President will attempt to expand PD to perhaps the parents of DACA recipients and/or other non-criminal aliens who have US born children (or other very close family members) and who have resided in the U.S. for the past five years. However, I cannot claim to know precisely what the President has in mind.  Even in the event that this sort of benefit is given to undocumented aliens, it is a far cry from lawful status or permanent residence.  All the President seems to be proposing is the issuance of employment authorization documents for such eligible aliens.  They are not being placed on a pathway to Citizenship by these sorts of limited discretionary actions.

Further, whatever the Presidential action is, it will certainly exclude criminal aliens and other perceived bad actors.  For example, DACA is not available to aliens with even one DUI.  Hence, there will be a multitude of undocumented aliens who will not qualify. There may also be the risk of triggering Removal proceedings for individuals who apply for such relief, fail to qualify, and remain removable.  Aliens will have to ensure that their efforts to benefit from a new Presidential policy does not have the unintended consequence of triggering their removal from the US.

Further, aliens who are seeking immigration status and a pathway to US Citizenship may not have their objectives met in this sort of executive relief and will need to pursue other lawful avenues to meet those objectives.  Additionally, aliens in the US for a period or periods short of the qualifying period, would likely be denied relief.

Aliens should continue to vigorously pursue immigration relief that has been identified as available to them at present and conduct an analysis as to how their particular circumstances relate to any executive action taken in the near future by the President.

I will be watching developments closely as we approach the end of the year and will be advising my clients accordingly as concrete announcements are made by the President.

By: Duane M. Hamilton