Posted: 2:00 pm Thursday, July 31st, 2014
By Tom Sabulis
Moderated by Tom Sabulis
The rhetoric has ramped up around illegal immingrants and especially the undocumented children at our country’s southern border. Today, an Atlanta immigration lawyer writes about the steps President Obama can take to relieve the situation, while a conservative commentator, an appointee to the state immigration board, says executive orders could unlawful. Also, an Emory University professor, the daughter of a mother who came illegally to the U.S. before becoming a naturalized citizen, ponders the question of who really belongs.
Commenting is open.
Obama can do much to help
By Charles Kuck
President Barack Obama has been timid, at best, in using his executive powers to alleviate the current immigration crisis, preferring to wait for what can only be described as a unicorn — bipartisan immigration reform. Recently, the president indicated he is ready to use this practical tool to inject rationality and humanity into a broken immigration system that is responsive neither to families nor business realities.
Executive powers are not a “loophole.” They have been used historically to interpret and implement immigration statutes and are commonly used by executive agencies. With these broad powers, Obama can do much to legally alleviate the current immigration crisis.
The president can issue parole-in-place for immediate relatives of U.S. citizens who are the beneficiaries of approved visa petitions. The attorney general has the authority to parole into the U.S. — for urgent humanitarian reasons or significant public benefit — any alien applying for admission to the country. Once granted parole, these individuals can obtain lawful permanent residence through U.S. citizen spouses. Parole-in-place has been used for immediate relatives of U.S. military personnel and for Cuban arrivals.
Obama also can instruct immigration officials to apply more discretion to favorably adjudicate waivers for undocumented immediate relatives of U.S. citizens. These individuals would be eligible to legally process their residence papers, if granted a waiver. Under a previous administration, immigration agencies exercised discretion favorably to stop deportation of certain Central American refugees.
The administration can find, as did the 6th U.S. Circuit Court of Appeals, that those with temporary protected status are eligible to apply for permanent residence if they are the beneficiaries of approved visa petitions. Certain citizens of Haiti, Syria, El Salvador and Honduras, among others, have such status because of war or natural disasters back home.
Although the administration cannot increase the number of family and employment-based immigrant visas, it can alter the way family units are counted against the worldwide immigrant visa quota, counting only one number per family unit against the quota instead of each member of a family. This would open up the number of available visas and reduce the cruel wait times that separate families and deprive employers of skilled workers.
The administration can allow all foreign nationals with approved immigrant visa petitions to apply for waivers while in the U.S. Currently, this procedure is available only to immediate relatives of U.S. citizens. Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and are eligible for waivers, have to apply for waivers after being denied visas abroad. These waivers can take many months or even years to adjudicate. Fearful of not being granted waivers, many foreign nationals do not go abroad, even though many of these waivers would be favorably adjudicated.
The administration can extend the practical training granted to foreign graduates of U.S. universities, allowing U.S. employers to benefit from their talents. The administration has already done this for graduates in science, technology, engineering and math fields, people whose employers enroll in the E-Verify program. Why not offer this option to all U.S. foreign graduates? Doing so would free up the professional H-1B work visa, which Congress has capped so that the total number of visas available to foreign professionals is exhausted on the first day the visa becomes available.
The administration can grant work permission to spouses of H-1B, TN, and H-1B1 professionals and O-1 extraordinary workers, further alleviating pressure on the H-1B quota. Executive authority has already been used to grant spouses of other nonimmigrant visa categories the right to work.
Certainly, many in Congress will criticize the president’s use of executive powers in the immigration arena. It is within Congress’ power to enact laws; it is within the executive’s power to interpret those laws. The president has given Congress sufficient time to pass meaningful immigration reform, and it has failed to do so. Though the president has been a great advocate of bipartisan immigration reform, the ball is now in his court. What will the president do? We certainly hope he takes the lead.
Charles H. Kuck is managing attorney at Kuck Immigration Partners, Atlanta. He served as the national president of the American Immigration Lawyers Association from 2008 to 2009.
Executive orders would be extreme
By Phil Kent
At the same time U.S. House of Representatives Speaker John Boehner is pursuing a lawsuit against President Barack Obama, charging him with an unconstitutional overreach of his executive authority, debate swirls around how much the president could unilaterally act to address the nation’s growing illegal immigration crisis.
In the past, Obama said there was little in his power to implement amnesty or to protect illegals living here from deportation. Now, in a turnabout, he is considering broad actions through executive orders.
U.S. Sen. Jeff Sessions, a member of the Subcommittee on Immigration, Border Security and Citizenship, perhaps best sums up the grave bipartisan congressional concern with such a radical move:
“It would alter the constitutional framework in such a way that the founders would never have accepted. Plain law says if you’re in this country illegally, you’re subject to deportation and you are unable to work lawfully in our country.”
Sessions is a Republican yet several Democratic senators— most recently Kay Hagan of North Carolina and Mark Pryor of Arkansas— are also warning that such presidential action is unwarranted and that changes in the immigration law must be enacted by Congress.
The president’s general idea, articulated in a trial balloon floated to the Congressional Hispanic Caucus, would — in direct contravention of established American law— offer safe harbor to millions of illegal immigrants with “roots” in their communities and “family ties” to U.S. citizens.
One presidential option under consideration would expand the program that offers work permits and protection from deportation to young people brought to the U.S. illegally as children, known as Deferred Action for Childhood Arrivals. Another possible executive action would protect from deportation any illegal immigrants with children who are U.S. citizens. (According to the National Foundation for American policy, that segment alone accounts for about 4.4 million.) Administration officials are also toying with a “parole in place” scheme, which has a different and fuzzy legal foundation but would direct the federal government to issue work permits to 11 million-plus illegal immigrants.
Unilaterally decreeing such actions would, of course, steer our ship of state into dangerous legal waters. Amnesty by executive order would be a violation of the oath of office that stipulates a president will faithfully enforce our nation’s laws. It would be a direct challenge to the clear constitutional powers of Congress to only make laws.
Pressure is being applied on the White House from congressional Republicans and a growing number of Democrats not to take such an astonishing and extreme route. On the other hand, issuing the proposed executive orders is being demanded by the highly-vocal “open borders” lobby that raises money for politicians all across the country. By the way, Sessions is promoting legislation to counter any executive orders — an approach that ought to have bipartisan appeal. The bill says that if the president goes forward unilaterally with executive orders, he cannot use any taxpayer dollars to carry out unlawful amnesties or work authorizations. The congressional power of the purse would trump the president.
Of course, if the president had enforced current laws on the books much of the illegal immigration problem would have been under control years ago. But since that didn’t happen, a big question now looms: What if Congress does not address the current border surge of Central American illegals or illegal immigration/border control in general? What exactly are the limits to what Obama would do? Since he is already considering an unprecedented, unlawful assertion of presidential power, why not just go ahead and grant amnesty to every illegal alien who sneaks into our country?
There will indeed be a constitutional crisis if the president moves forward hoping he can get away with simply issuing edicts. No wonder public opinion polls reflect that a growing number of Americans feel the real crime is not at the border but with cowardly politicians, regardless of party, who would abandon their duty to uphold our rule of law and defend our national sovereignty.
Phil Kent is a member of the Georgia Immigration Enforcement Review Board.
Torn between two worlds
By Imelda Reyes
Years ago, I remember driving up to a “safety stop” in Roswell with my husband, shortly after Georgia implemented a law cracking down on undocumented residents. Though I was born and raised in the U.S. — maybe thanks to my olive skin and curly hair — I had to stop and show my license and registration as proof that I belonged every time I went through.
As we pulled up that day, I looked on incredulously as the officer waved my husband through as I sat shotgun. He didn’t have to show his license or car registration. He was able to just drive through. What was the difference? I am Latina. My husband is white. It was one of the moments when I began to feel like a guest in this country, and not at home.
I have been thinking a lot lately about the notion of who belongs here, as I watch the startling images of the 57,000 children stuck on the U.S. border. Many are fleeing dangerous situations in South and Central American and potentially face deportation. Many come from countries shaped directly by U.S. policy, whether from our support for various regimes or the fact that the U.S. is the largest importer of illegal drugs, as the Huffington Post reported.
Even coming from my relative privilege as an Emory professor with a doctorate, the coverage of the crisis has forced me to ask the same question: Who really belongs here?
My mother came to the U.S. from Mexico illegally 40 years ago and married my U.S.-born father of Mexican descent, who was from the southern Rio Grande Valley and labored as a migrant worker in Michigan.
We may not “look” like a typical American, but who is a typical American? At some point, many of us had family members who emigrated from other countries. We came looking for something better. Is it so easy to throw these people away because they supposedly don’t look like us?
I was lucky. My dad knew English and understood the importance of education and emphasized that early on. He knew that it meant I would have a totally different life. I remember his stories of feeling odd when he encountered separate drinking fountains for people of color. He didn’t really fit into either category, black or white, so he shared that he would get funny looks from both sides.
What he didn’t foresee is that I would encounter many of the same prejudices. He also couldn’t possibly have guessed I would be picked on for sounding “white” while growing up. Or that people would say I have gotten to where I am because of programs for minorities.
I am thankful for what I have, but it hurts to see those who look like me so easily discarded. The immigration issue can’t be solved that easily. But when we start to relate to each other as humans, maybe we can open the doors to a more humane policy.
Imelda Reyes is an assistant clinical professor in nursing at Emory University and a public voices fellow with The Op-Ed Project.