The President in Favor..?

DOES PRESIDENT OBAMA HAVE THE POWER TO ACT WITHOUT CONGRESS ON IMMIGRATION?

Yes, he has the power to do it.  However, his power is somehow limited.  There are two cases from the United States Supreme Court that ratified this power.

The first is Reno v. American-Arab Anti Discrimination Committee, 525 US 471, 490 (1999). In that case, the Supreme Court majority stated that the concerns that prompt deference to the executive branch’s determinations about whether to prosecute criminal offenses are “greatly magnified in the deportation context”, as deportation proceedings are civil rather than criminal.

And in a recent case, during President Obama’s term, Arizona v. US, 132 S. Ct at 2498 (2012), the Court majority held that a “principal feature of the removal system is the broad discretion entrusted to immigration officials”. The Arizona decision also specifically listed “immediate human concerns” and “equities of…individual cases” as among the factors which could be involved in prosecutorial discretion.

Over and beyond these broad judicial statements, analysts and immigration advocates cite numerous Board of Immigration Appeals and federal court decisions upholding prosecutorial discretion with regard to numerous immigration enforcement issues.

These include the following:

• whether to parole an alien into the United States;
• whether to commence removal proceedings and what charges to lodge against the respondent;
• whether to pursue formal removal proceedings;
• whether to cancel a Notice to Appear or other charging document before jurisdiction vests with an immigration judge;
• whether to grant deferred action or extended voluntary departure;
• whether to appeal an immigration judge’s decision or order, and whether to file a motion to reopen;
• whether to invoke an automatic stay during the pendency of an appeal; and
• whether to impose a fine for particular offenses.

Clearly, the cases favor President Obama’s exercise of discretion. Therefore, if Congress or Speaker Boehner goes ahead with his plans to sue the president that was just approved last July for allegedly exceeding his authority with respect to the exercise of discretion over immigration enforcement, they will have a heavy burden of showing that the law is on his side.

However, we should also keep in mind that there are also limits to executive power over immigration enforcement. We will discuss these limits in an upcoming article.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about what President Obama can do, if anything, in immigration. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with an immigration case. Each case is fact-specific and therefore similar cases may have different outcomes.

If you have any questions or concerns about any legal issue, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York13202. Please look for my next article in the September edition.

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