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School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor---------------------- Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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Congressional Research Service (CRS)

 

The Obama Administration’s November 2014 Immigration Initiatives: Questions and Answers

Kate M. Manuel, Legislative Attorney

November 24, 2014

https://www.fas.org/sgp/crs/homesec/R43798.pdf

[full-text, 26 pages]

 

Summary

On November 20, 2014, President Obama delivered a televised address wherein he broadly

described the steps that his administration is taking to “fix” what he has repeatedly described as a

“broken immigration system.” Following the President’s address, executive agencies made

available intra-agency memoranda and fact sheets detailing specific actions that have already

been taken, or will be taken in the future. These actions generally involve either border security,

the current unlawfully present population, or future legal immigration.

 

The most notable of these actions, for many commentators, are the initiatives to grant “deferred

action”—one type of relief from removal—to some unlawfully present aliens who were brought

to the United States as children and raised here, or who have children who are U.S. citizens or

lawfully permanent resident (LPR) aliens. Previously, in June 2012, then Secretary of Homeland

Security Janet Napolitano announced a program—commonly known as Deferred Action for

Childhood Arrivals (DACA)—whereby unlawfully present aliens who had been brought to the

United States as children and met other criteria could receive deferred action and, in many cases,

employment authorization. The eligibility criteria for DACA expressly excluded unlawfully

present aliens who were over 31 years of age, or who had entered the United States on or after

June 15, 2007. However, aliens who are over 31 years of age, or entered between June 15, 2007,

and January 1, 2010, could receive deferred action as part of the 2014 initiative.

 

Similarly, unlawfully present aliens who have children who are U.S. citizens or LPRs could also

receive deferred action and employment authorization pursuant to the November 2014 initiatives,

provided they meet specified criteria. These criteria include “continuous residence” in the United

States since before January 1, 2010; physical presence in the United States both on the date the

initiative was announced and on the date when they request deferred action; and not being an

enforcement priority (e.g., not a threat to national or border security).

 

The announced executive actions—particularly the granting of deferred action and employment

authorization to unlawfully present aliens—have revived debate about the President’s

discretionary authority over immigration like that which followed the announcement of DACA in

2012. In the case of DACA, some argued that the initiative violates the Take Care Clause of the

U.S. Constitution, runs afoul of specific requirements found in the Immigration and Nationality

Act (INA), or is inconsistent with historical precedents. Others, however, asserted that DACA

involves a valid exercise of the executive’s prosecutorial or enforcement discretion, is consistent

with the INA, and has ample historical precedent. Similar arguments will likely be made as to the

November 2014 actions, which affect a significantly larger number of aliens than DACA.

 

Legal challenges to DACA have generally failed on standing grounds, because the plaintiffs

bringing these challenges were not seen as the proper parties to seek judicial relief from a federal

court. The one exception to this—the litigation in Crane v. Napolitano—resulted in the reviewing

federal district court finding that DACA runs afoul of provisions in Section 235 of the INA which

some assert require the executive to place unlawfully present aliens in removal proceedings.

However, this same federal district court subsequently found that it lacked jurisdiction because

the plaintiff immigration officers alleged that they faced discipline by their employer, DHS, if

they refused to implement DACA, and such claims are within the jurisdiction of the Merit

Systems Protection Board (MSPB), not the court.

 

The 113th Congress has also considered legislation to defund DACA (e.g., H.R. 5272, H.R. 5316).

 

Contents

What actions are being taken by the Obama Administration? ............................................ 2

Did the President issue an executive order? ........................................................................ 8

What is the legal authority for the Administration’s actions? ............................................. 8

Are there constitutional or related constraints upon the executive’s discretionary

authority over immigration enforcement? ...................................................................... 11

What other legal issues might be raised by the Administration’s actions? ........................ 14

Does granting deferred action to unlawfully present aliens legalize their status? ............. 16

Will aliens granted deferred action be eligible for public benefits? .................................. 16

Who has standing to challenge the Administration’s initiatives? ...................................... 18

Is there historical precedent for the Administration’s actions? ......................................... 21

 

Contacts

Author Contact Information........................................................................................................... 23

Acknowledgments ......................................................................................................................... 23

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