How President Obama Could
Strengthen and Better Defend the DAPA/DACA Programs
President Obama has tried his hand at
administrative reform primarily by issuing two programs
to give some immigrants temporary "deferred action
status" and work permits for two to three years if they
have U.S. citizen children and have resided here since
January 2010 (DAPA), or if they were brought here as
children (DACA and expanded DACA).
For now, implementation of DAPA and expanded DACA has been blocked by the federal courts, primarily because the DHS failed to publish DAPA/expanded DACA as "proposed regulations," and give the public 30 days to comment before implementing the directives as agency regulations.
There are several critically important steps analyzed in the attached report (view or download here) President Obama could take to better protect DACA recipients and potential DAPA recipients.
At a town hall meeting in Miami on February 25, 2015, the President announced that he would not be deterred by "one federal judge" (i.e. federal district court Judge Andrew S. Hanen in Texas who has enjoined the DAPA/ expanded DACA programs). He told the crowd that his administration will become "even more aggressive in the weeks and months to come... We're going to be as aggressive as we can."
Unfortunately, the Administration decided to issue DAPA/DACA as a "policy" (basically a "privilege" for applicants) that can be changed overnight by any future Administration, rather than as a formal "regulation" (also called a "substantive rule") that extends real rights to applicants and cannot be cancelled overnight. Under the Administrative Procedures Act (APA), a federal agency must first publish a substantive rule in "proposed" (draft) form and the public must be given 30 days to comment before the regulation is finally adopted. The Administration's refusal to issue DAPA/DACA as a DHS "regulation" has negative legal and practical consequences for millions of potential applicants.
If President Obama published DAPA/DACA as a formal regulation: (1) the legal basis for the current injunction blocking DAPA/expanded DACA would be wiped out without risking lengthy appeals, (2) DAPA/DACA would become a "substantive right" instead of a "privilege" giving applicants and recipients stronger enforceable legal rights, (3) a formal regulation will make it more difficult for a future Administration, without advance notice or the public's opportunity to comment, to terminate the DAPA/DACA programs (and to place DAPA/DACA recipients in deportation proceedings), and(4) in proposed regulations the Administration could include statements and rules that would substantially decrease the strength of the States' constitutional challenge to DAPA/expanded DACA.
The full report explaining the status of the Texas v. United States litigation may be viewed or downloaded by selecting this link.
Comprehensive White House Immigration Reform: President Obama is Missing the Boat and Leaving Millions of Immigrants Stranded
This report argues that President Obama's immigration reform ship is sinking, but has not yet sunk. The report demonstrates step by step how President Obama can quickly correct the situation and achieve major immigration reform, helping millions of immigrants, with no action needed by Congress. The full report may be viewed or downloaded here. Here is the brief summary of the recommendations:
To protect immigrants' rights under DAPA/DACA, and to overcome the primary reason for the injunction now blocking DAPA/expanded DACA, President Obama should promptly issue formal regulations on DAPA/DACA.
President Obama should adopt regulations allowing all immigrants eligible for family or employment----based visas under existing law, and the parents of DACA recipients, to apply for and be granted "advance parole" (permission to travel abroad and return to the U.S.) for personal or business purposes allowing about two million immigrants to become eligible for adjustment of status.
President Obama should immediately reverse his policy of detaining Central American "mothers" and their children in response to the temporary 2014 "surge" in Central American minors entering the U.S.
The Administration should promptly adopt regulations allowing tens of thousands of Central Americans and Haitians who have been residing continuously in the U.S. for over 25 years on Temporary Protected Status (TPS) to obtain lawful permanent resident status.
President Obama should modify the terms of the recently issued Priorities Enforcement Program (PEP) (involving "priorities" for deportation) and adopt the policy as a formal regulation. Immigrants who are not security threats or have not been convicted of serious crimes should be granted "stays of deportation" until the Administration has eliminated the backlog of cases involving national security threats and serious criminal convictions.
President Obama should promptly adopt regulations to increase the number of immigrants granted "waivers" of inadmissibility allowing thousands of immigrants with minor convictions or illegal re-entries to now legalize their immigration status.
The full report may be viewed or downloaded here.