President Obama is expected to make a major announcement about immigration reform this Thursday evening. It is anticipated that he will roll out a plan that would effectively grant relief from deportation to as many as 5 million undocumented immigrants by using his Executive Authority on how our current immigration laws are enforced. These actions are being taken as more than 1 year has passed since the Senate initially passed an immigration reform bill that had bipartisan support in June 2013, but was later killed in the House.
In 2011, ICE Director John Morton issued a memorandum describing how it would apply its prosecutorial discretion to immigrants in deportation proceedings. This memo identified categories of immigrants who were “low priority” for deportation and should receive favorable prosecutorial discretion, including the so called “DREAM Act” students, i.e. young people brought to the U.S. and children and who have grown up in the US and in every respect are Americans but for papers. Later, President Obama took executive action in 2012 by providing for deferred action these young DREAMERS in a program known as “Deferred Action for Early Childhood Arrivals (DACA),” which has garnered bipartisan support.
The anticipated announcement will likely include 4 prongs: (1) renewal of the DACA program; (2) provide a reprieve from deportation for certain immigrant parents of U.S. citizens and legal permanent residents; (3) a border security component; and (4) a business immigration component.
While there are critics of President Obama’s exercise of executive power, I believe that President Obama is not only acting within his powers, but it is a moral imperative that he do so, and there is historical precedent for executive action over the enforcement of our immigration laws. For example, President George H. Bush, granted legal status to 1.5 million undocumented immigrants under his “Family Fairness” policy.
The Department of Homeland Security (DHS) is charged with enforcing our immigration laws, and this agency falls squarely under the Executive Branch. DHS officials routinely exercise discretion in the prosecution of immigration violations. President Obama’s announcement would likely involve giving further discretion by allowing deferred action for immigrants currently in the U.S. without status, and thereby bringing them out of the shadows.
 Our law firm represented one such DREAM Act student, pre-med student Mandeep Chahal. Ms. Chahal was granted a stay of removal just days after the release of the Morton Memo. Her case is believed to be one of the first applications of the Morton Memo.