On Oct 15 2014 by William A. Stock

Obama’s Immigration Executive Order Would Follow Predecessors’ Lead

A comprehensive immigration reform bill was passed through the Senate in 2013, but by the end of June of this year, House Speaker John Boehner had announced there would not be a House vote on the Senate's bill, or on any other immigration-related legislation.

President Obama responded by promising to act by executive order, rather than waiting for legislation, to help people without status find a way to remain legally in the United States until Congress finally acts.

Some have questioned the president’s authority to grant any sort of relief from deportation to those unlawfully present within the United States. They point to the legislative branch’s authority to set the rules for admission of foreign nationals to the United States, and the executive branch’s duty to ensure those laws are faithfully executed. Yet, in immigration law enforcement-as in every branch of law enforcement-there remains a great deal of prosecutorial discretion that courts have recognized and, in general, refused to question.

Assuming the president does issue one or more executive orders affecting those unlawfully present in the United States, he would be acting in accordance with examples provided by all of his predecessors going back to President Dwight Eisenhower. In late 1956, as Soviet armed forces crushed a democratic uprising in Hungary, tens of thousands of refugees fled, and the United States was asked to resettle some of those refugees as immigrants in the United States. In the 1950s, however, immigration to the United States was still limited by national origin quotas from the 1920s, which limited Hungary to a mere 865 immigrants per year. The only other possibility was admission of the Hungarians under the Refugee Relief Act, which required prospective refugees from Communist countries to establish a two-year period of residence without security issues before being allowed to enter the United States.

In November 1956, when the crisis arose, Congress was out of session, and the two existing legal channels did not provide a mechanism through which thousands of refugees could be admitted to the United States. Eisenhower made about 6,000 visas available under the RRA, deciding to waive the security clearance requirements temporarily until after the refugees were in the United States-interpreting the law to allow the admission to occur first, and the two years to be obtained afterward. This executive action to interpret the RRA did not please some in Congress, but it did provide a mechanism within existing legal quotas to admit some of the Hungarian refugees.

More controversially at the time, Eisenhower decided to allow tens of thousands of Hungarians to enter the United States outside of any quota established by Congress, through a mechanism known as “parole.” The provision of parole authority in the Immigration and Nationality Act empowers the immigration authorities to allow any foreign national to actually enter the United States while legally being considered still an applicant for admission. Such a “parole” places the foreign national in a legal limbo-present in the United States lawfully based on an act of administrative grace, but still needing to use a congressionally determined category of admission if he or she is to obtain a temporary or permanent status in the United States. Ultimately, nearly 40,000 Hungarians would be paroled into the United States through executive action alone.

One need not go back to the 1950s to find examples of presidents using their executive authority to grant temporary admission to foreign nationals who did not fit within existing channels of legal immigration at the time. After Eisenhower, presidents from John F. Kennedy to Richard Nixon paroled more than 600,000 Cubans into the United States in response to the Cuban Revolution, and President Jimmy Carter paroled another 123,000 Cubans in 1980. In 1962, more than 15,000 Chinese were paroled after fleeing to Hong Kong. Presidents Gerald Ford and Carter paroled more than 360,000 Indochinese in the aftermath of the Vietnam War, and President George H.W. Bush paroled more than 7,000 Indochinese and Soviet nationals after they had been denied refugee visas.

Presidents have not only gotten around congressionally mandated immigration quotas by granting admission to the United States through the parole mechanism, however. Foreign nationals in the United States without status have been granted permission to remain in the United States by presidents since the 1970s. These programs have been formal grants of deferred deportation, to groups defined by executive order, with grants of employment authorization. They have all covered foreign nationals within the United States who otherwise had no status, or whose prior status had lapsed. Presidents Ford, Carter, Ronald Reagan, Bill Clinton and both Bushes granted formal deferrals of removal to various groups as disparate as Lebanese, Ethiopians, Ugandans, Nicaraguans, Iranians, Afghanis, Poles, Salvadorans, Chinese, Liberians and Haitians due to unrest in their countries or other humanitarian concerns.

Most relevant to the current debate over President Obama’s prospective executive orders, however, are precedents set by Reagan, Bush Sr. and Clinton to grant deferred deportation benefits to unlawfully present individuals who would be affected by pending legislation to grant them legal status. Reagan and Bush Sr. granted deportation deferrals to nearly 200,000 Nicaraguans, who were ultimately allowed to obtain permanent residence through the Nicaraguan Adjustment and Central American Relief Act signed into law by Clinton. Bush Sr. granted deportation deferrals to about 80,000 Chinese in the United States at the time of the Tiananmen Square crisis, and Congress ultimately passed the Chinese Student Protection Act to allow them to obtain permanent residence in 1993.

Bush Sr. authorized the largest grant of executive immigration relief to date when measured in terms of number of foreign nationals affected. In 1986, Congress passed the Immigration Reform and Control Act, which legalized more than 3 million foreign nationals who were unlawfully present in the United States at the time. That legislation, however, left out more than 1.5 million unlawfully present family members of newly legalized immigrants; in those families, one or more family members met the requirements to obtain permanent residence under IRCA, but spouses or children did not. To avoid hardships, family separation and the negative economic consequences of deporting these family members, Bush Sr. implemented a “Family Fairness” policy to defer the deportation of these family members for several years while Congress raised the annual immigrant quotas to gradually provide legal status to these family members.

In the run-up to November’s midterm elections, there continue to be questions of when and whether Obama will act to provide some administrative relief to a broader group of those without status in the United States than he did with the Deferred Action for Childhood Arrivals program in 2012. While many of those questions focus on the political aspects of that decision, the question of the president’s authority to act is occasionally raised. When it is, lawyers can point out that executive orders allowing admission of immigrants outside of immigration quotas through parole, deferral of removal in humanitarian cases, and deferral of removal while legalization legislation is being considered by Congress all have been exercised by presidents for nearly 60 years, and Congress has consistently acquiesced in the exercise of those powers.

Absent a presidential order, decisions about whether to remove a particular foreign national, and considerations of humanitarian issues, are made by immigration officers on an ad hoc basis, with disparate results for similarly situated foreign nationals. By clearly delineating classes of foreign nationals whose deportation should be deferred, an executive order would help make the process of prosecutorial discretion more transparent and less subject to arbitrary denials. Should the president choose to issue such an order, he would be acting well within the scope of authority used by his predecessors.