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Olivas/Hoffman – Obama’s immigration order

Michael Olivas Geoffrey Hoffman
Michael Olivas Geoffrey Hoffman

Nov. 21, 2014 – In a nationally televised address Thursday evening, President Obama outlined an executive order that will allow as many as 5 million undocumented immigrants to remain and work in the United States without fear of deportation. Obama also directed an increase in border security, stepped up prosecution and deportation of criminals, eased visa requirements for science and technology students, and expanded eligibility requirements for the so-called “Dreamers” program, which defers deportation for young immigrants who were brought into the U.S. at a young age. University of Houston Law Center Professors Michael A. Olivas and Geoffrey Hoffman, both of whom are recognized authorities on immigration law and related issues, offered their reaction to the president’s action.

Michael A. Olivas, William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance

I am pleased that President Obama kept his promise to undertake additional administrative action to improve the lot of persons with lawful status in the country. He did not do all he could do with his choices and line-drawing, but he was more generous than nativists and obstructionists feared. They will never agree with the actual metrics of deportation and removal, which have been at an all-time high. If they want to do something constructive, they should pass a reasonable House bill and reconcile it with the Senate version passed almost a year and a half ago.

I helped draft the law professor memo used by DHS in fashioning Deferred Action for Childhood Arrivals (DACA) and it has been a great success in transforming the lives of young DREAMers. Even if they cannot agree on a comprehensive scheme, the House should get off the dime and allow DREAMers to gain permanent residence, so we can recoup our investment in their schooling.

Congress should take advantage of this policy, and enact a federal DREAM Act, including members of the current House who have supported its passage. 

Geoffrey Hoffman, Clinical Associate Professor and director of the Immigration Clinic

President Obama’s new executive action is an important step toward much needed immigration reform, but it is also most important to remember that this is not “reform,” nor is it “amnesty.”  It will not provide any legal status to anyone or a pathway to legal status. For that, Congress still must act.

The president has made the choice to assist an estimated 5-6 million people with work authorization and deferred action, but only if they qualify after a strict application process, pay fees, pass background checks, etc. The number of people who may be helped is only an estimate because there is no way to accurately assess how many undocumented immigrants may be affected.

Congress has been given numerous opportunities to act, ranging from the so-called “Dream Act” to Comprehensive Immigration Reform, but failed to do so. Passage of S.B. 744 by the Senate was a good example. Despite the broad bipartisan support we saw in the Senate for the bill, which would have brought about extensive immigration reforms, it never made it through the House.

Previously, with respect to Deferred Action for Childhood Arrivals (DACA), initiated in 2012, the president made an executive decision to defer removal for a smaller subset of undocumented persons who had entered the country as children. The rationale then was much the same as the rationale now behind the new executive action. Then, as now, there was a concern that the priorities that we were using as a nation to deport people were unintelligent and at odds with a targeted and precise approach. Deciding to defer deportations to certain groups freed up scarce enforcement resources to go after violent offenders and true dangers to the community.  Moreover, we have an ethical obligation to provide the most opportunities we can to help families remain together.

We have a duty to help people pursue all possible lawful remedies to remain in the U.S., and also to give people who have been here for many, many years and who have developed deep ties to our country an opportunity to come out of the shadows and work and give back to their communities.  That this process will be beneficial to our economy has been researched and documented by the non-partisan Congressional Budget Office. There is a long history of prosecutorial discretion in immigration law as well as the criminal law. Recently, the U.S. Supreme Court recognized this long history and the appropriateness of prosecutorial discretion in the context of immigration in the case of Arizona v. United States, 132 S.Ct. 2492 (2012).

One issue the president’s new policy does not address is family detention. This practice of detaining mothers and their children, many with pending asylum claims, at for example the Karnes Detention Center, at Artesia, in New Mexico, and the soon-to-be-opened facility in Dilley, Texas, has been a sore spot for immigration advocates. The Department of Homeland Security also has taken a very harsh position with respect to releasing many of these families, arguing that they should not be entitled to bonds because they allegedly represent a threat to national security. While not minimizing the importance of the president’s executive decision concerning many undocumented, we should keep in mind the plight of those in family detention who are unable to be released due to the government’s continued policies. These people and their concerns should not be overlooked in light of the announcement made last night.

Finally, let me emphasize this is a dangerous time to seek legal advice for immigrants. Many will be misled by unscrupulous attorneys, unlicensed “notaries,” and other people holding themselves out as lawyers. People will need to seek help from licensed legal professionals, AILA attorneys, and others such as law school clinics which specialize in assisting people with this specific type of immigration relief.