WAIT FOR IT. . .

Posted September 6, 2014

Upholding the time-honored maxim that indecision is the key to flexibility, President Obama has decided to delay any executive action on immigration until after the November elections.

The apparent political calculation bears enormous risk.  If the GOP wins the Senate, any such action would likely be scaled back to reflect shifting American sentiment on illegal immigration, lest the president feel that a looming lame duck stature would free his hand to cement a legacy through executive action that precedes narrower reform legislation.  If the Democrats retain control of the Senate, presumably comprehensive reform legislation would be back on the table, the House would continue to oppose, and the president can do as he pleases through executive action while blaming inaction on House Republicans.

Confused? Lo siento.  Law, as I say, is politics.

Deferred action clients: Your renewal period is approaching.  DACA remains in place.  Don’t delay!  Submit your bid for two more years of employment and prosecutorial discretion today.  The earliest you can re-apply is five months prior to the expiration of your current deferred action period.

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Obama Now Considering Post-Election Executive Action

Posted August 30, 2014

Latest media reports sourced to administration officials indicate President Obama has reviewed the menu of options for executive action on immigration, yet may close the flap and opt for another Arnold Palmer and idle chat with tableside donors until the elections pass.

In an appearance in the White House briefing room this week to address events in the middle east, Obama thanked everyone for coming and turned from the podium.  A forgotten reporter shouted out something to the effect of, ‘What about immigration?’  The president returned to the podium and said “[h]ave no doubt, in the absence of Congressional action, I’m going to do what I can to make sure the system works better.”

He then added “[s]ome of these things do affect timelines, and we’re just going to be working through as systematically as possible in order to get this done.”

(Seems rather the reverse is true, that timelines in fact affect these things, or maybe I’m metaphysically challenged.  But whatever.)

The deferred action (DACA) program was announced in mid-June 2012, and applications were accepted within 90 days, many approved prior to the government’s September 30 fiscal year end.  If the fiscal year ‘system’ is the prominent timeline, then it may be more an issue of appropriations, hinting at at sizable set of actions under consideration.

Another timeline that may have entered his thinking is the upcoming mid-term election. If the Houses of Congress remain divided until his second term ends, surely the president will have greater, uh, flexibility, and a wider range of options to effect change by executive order. If the GOP takes the Senate, then Obama will be much more constrained in his ability act.

My guess is that such a risk to establishing a legacy with U.S. immigration is too high to bear and Obama will act within a few weeks, incumbent senators in pink states be darned.  By accepting that risk and delaying action, whether by fiscal or political choice, he would be undermining a Hispanic caucus that will endure as a political force in America far longer than he.  The waitress is back and its time to order, Mr. President.

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Obama Weighs Significant Action

Posted August 27, 2014

The Immigration and Nationality Act is on course for a substantial makeover.

According to the Washington Post, President Obama is weighing a range of proposals for executive action that would loosen and broaden a range of federal administrative rules impacting eligibility for lawful U.S. immigration.  According to various immigration advocacy groups, the rule changes should significantly increase fiscal year quotas in family and employment-based categories.  The question remains, of course, to what degree and with which moving parts that excuse present inadmissibility rules.

Obama “believes it’s important to understand and consider a full range of perspectives,” according to a White House spokesman.  New categories of skilled and labor-intensive work visas may emerge that allow illegal immigrants without family sponsorship to apply to temporarily stay in the U.S. and work their way toward eventual immigration.  Such a balancing stroke would complement a much more consequential move to grant provisional resident status to relatives of U.S. citizens (mostly native-born children) and permanent residents or those already granted deferred action.

Inside information from excited advocates should be viewed as unfocused yet fairly scoped given the immigration reform movement’s historical crescendo, the political calendar and the president’s stated intentions. Stay tuned for the latest as this monumental event shapes up.

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Immigration Reform Dead in the Water for 2014

Posted July 2, 2014

The news out of Washington, DC is not good.  A combination of events, including an unexpected influx of Central American immigrant children at the Texas border, has caused House Republicans who hold the keys to immigration reform to step back and reassess the politics and sensibility of comprehensive immigration reform.  President Obama has promised to move forward with executive actions to re-prioritize deportation policy in lieu of reform legislation, but the reality is that the Department of Homeland Security will remain significantly constrained to alter existing mechanisms of illegal immigration and deportations beyond the muddled notions of prosecutorial discretion and deferred action already in place.

If you are the beneficiary of a grant of deferred action (DACA), you must prepare and file another deferred action application, including another application for employment authorization, before the expiration of your current two year period.  As always, the best resource for accurate and up-to-date information is the USCIS website.  See here for the latest official information about the DACA renewal process.

If you are in removal proceedings with few if any legal options for relief, and are (at the advice of your attorney or otherwise) utilizing delay tactics in the hope that you may yet become the beneficiary of reform legislation, you should understand that further delay may become untenable and is fraught with risk.  A responsible approach should incorporate practical strategies that rely in part on available waivers under existing law.  Filing a frivolous asylum or withholding of removal application should never be the answer, particularly now that it appears immigration reform legislation, if it ever arrives, may be more conservatively skewed.

 

 

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