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Brooklyn officials, legal experts weigh in on Obama’s immigration order

November 24, 2014 By Alicia A. Caldwell, Associated Press and Charisma L. Troiano, Esq., Brooklyn Daily Eagle Brooklyn Daily Eagle
President Barack Obama signs two presidential memoranda associated with his actions on immigration in his office, on Air Force One as he arrives at McCarran International Airport in Las Vegas on Friday. The president will travel to Del Sol High School to speak about the steps he will be taking on immigration. AP Photo/Carolyn Kaster
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President Barack Obama’s announcement of sweeping changes to the nation’s immigration system is likely to lead to a battle over its legality.  Brooklyn officials and legal experts spoke out on Friday about whether or not Obama’s executive action is on solid legal ground.

For months, the White House and Obama’s supporters have insisted that he has the authority to direct immigration authorities to exercise discretion in deciding which immigrants in the country illegally will face deportation and which won’t.

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“The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every Democratic president for the past half century,” Obama said Thursday night.

All but one of New York’s congressional delegation agree with the president’s authority to act through executive action — not unlike presidents before.  

“House Republicans haven’t allowed a vote and haven’t proposed an alternative. Where they have failed, the president has acted just as Presidents Ronald Reagan and George H.W. Bush did,” Congresswoman Carolyn B. Maloney (D-N.Y.), said in a released statement. The lone standout was House Rep. Michael Grimm.

Brooklyn Borough President Eric Adams additionally weighed in.

“Providing a pathway to legal citizenship, while doing what is necessary and just to ensure our country’s security, is what Americans have long expected lawmakers in Washington to achieve. I hope that our leaders in Congress can put politics aside to make this effort possible, an effort that the president has advanced with this executive order, by passing comprehensive immigration reform,” Adams said.

Among those being protected from deportation under Obama’s plan are Brooklyn immigrants.

“No place embraces and appreciates the immigrant experience like Brooklyn, where nearly 40 percent of our residents are foreign-born. Our diversity is our greatest strength,” he said.

At issue is how far Obama can go — on his own — to shield immigrants who are in the country illegally from deportation.

“The president has the constitutional obligation to faithfully execute the laws, but that obligation includes discretion to decide enforcement priorities and to choose not to pursue certain legal violations,” Brooklyn Law School professor Maryellen Fullerton explained to the Eagle. “In this executive action, President Obama has done more than say he chooses not to enforce the laws against the parents of U.S. citizens and lawful permanent residents.  He has said he will give them temporary protection from deportation for three years.”

The Obama administration and its supporters have argued that the use of prosecutorial discretion — the ability to decide which cases will be pursued by prosecutors, either in immigration or criminal court — allows the president to decide which groups of immigrants should be a priority. 

Obama has argued that he can go one step further and use a provision in immigration law called “deferred action” to formally protect particular immigrants from deportation.

Immigrants granted deferred action are also eligible for work permits.

“Obama’s executive action is different from simply deciding not to enforce the law against them and leave them in the shadows,” Fullerton said. “This temporary protection allows them to move around the U.S. and participate in the society openly.”

What the president cannot do is halt all deportations or permanently change the immigration status of any specific group of immigrants — only Congress has that power.

Fullerton explains that Obama’s actions do not overstep executive power because he did not put an end to all deportations, just a portion.

“He is deciding to enforce the law against 6 million people who are in the U.S. without authorization and against all the new arrivals. He is deciding not to enforce the law against a portion of the unauthorized population,” the professor said. “He is setting enforcement priorities.”

While Obama’s proposals have been cleared by lawyers from both the Homeland Security and Justice departments, some of the Republican governors meeting in Florida this week said they were weighing a lawsuit to block the president’s action.

Outgoing Texas Gov. Rick Perry said a lawsuit was “very likely,” and Indiana Gov. Mike Pence and Louisiana Gov. Bobby Jindal suggested they’d be willing to join the legal challenge.

“It should be immediately challenged in court, and we should seek an immediate stay,” Pence said in an interview.

It’s unclear how such a challenge would fare. A lawsuit challenging the 2012 program that protects many young immigrants from deportation was filed in federal court in Texas, but was dismissed on technical grounds.

According to Brooklyn immigration experts, Obama’s executive action is in line with existing law as well as constitutional procedure.

“The executive action that focuses on providing temporary protection from deportation to parents of U.S. citizens and lawful permanent residents is totally in sync with the portion of the existing immigration law that prioritizes family members in terms of eligibility for immigration to the U.S.,” Fullerton concluded.

 


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