Texas District Judge ruling on President's Executive Action on Immigration

Suspense of the Obama administration executive order products of Deferred Action for Parents and Children--what does it mean?

As a lawyer who appears regularly in Federal District Court and frequently in the US Court of Appeals, I have some observations about the recent federal court decision granting injunctive relief preventing the implementation of the President's reform efforts which would have permitted parents and spouses of US citizens to obtain employment authorization and avoid temporary removal from the US by Immigration and Customs Enforcement. 

First, what the injunction does not do in my view: the injunction does not effect US immigration and Homeland Security policy toward removal (deportation) of undocumented persons.  If you are a criminal, or have an outstanding order of removal, you are on the A-list and a priority for removal.  Recently, the category of criminal aliens has slightly expanded to include those who may have a DUI or two, and therefore, demonstrate that they are a priority target for removal by ICE.  However, absent an outstanding order of removal by an Immigration Judge or someone who has received voluntary departure and reentered, I believe that ICE will remain selective about anyone who is simply unlawfully present.  If you have the qualifying immediate relative relationship necessary to file an I130 petition for immediate relative (spouse, parent, child) you should probably get that on file pending further national policy and legal changes to reform proposals that are likely recur. 

The Texas ruling found that the government violated terms and provisions of the Administrative Procedure Act, and a very basic tenet of administrative rulemaking and executive authority under U.S. law; namely, that the government must follow its own rules and observe the notice provisions set forth under federal law, particularly those contained in the Code of Federal Regulations setting forth notice and comment requirements concerning federal rulemaking authority.  In short, the policy changes recommended by the administration failed because they arguably failed to follow the procedural requirements affecting plenary executive authority.  That's my read anyway.  I think these shortcomings can be corrected and that the executive authority sought to be exercised by the President will be forthcoming.  The former is entirely a legal dilemma dependent on the administrative or DOJ's ability to conform to the APA, but the outcome is largely political. 

Consider the experience from a policy standpoint of President Clinton's extending the sunset provisions of 245i of the Immigration and Nationality Act in 1999 when he allowed those unlawfully present in the US to apply for adjustment of status and acquire lawful permanent residency upon filing of an immediate relative petition or labor certification prior to April 2000, effectively allowing the same folks the President seeks to help with not only work authorization but full lawful permanent residency!  What's the difference 15 years later?  

Currently, undocumented persons who are married to US citizens or have petitioning US citizen children must return to their country of origin to obtain their lawful permanent residency through consular visa processing abroad.  In those days, through President Clinton's executive fiat of extending the sunset provisions of INA 245i concerning adjustment of status, undocumented persons were able to resolve their entire case, right here at St. Louis immigration field offices.  Something to think about!

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