BC Expert: President Obama and Immigration
Kari Hong’s areas of specialization are immigration law, immigration consequences of criminal convictions, criminal law, family law and LGBT rights. Prior to joining Boston College, Hong operated her own firm with offices in California and Oregon where she specialized in immigration and criminal law. Hong has prepared more than 90 actions in the Ninth Circuit Court of Appeals, representing non-citizens in asylum, removal defense, citizenship claims, and criminal defendants accused of white collar crimes, violent felonies and drug-related offenses. She has prepared more than 40 state criminal appeals in the state of California. An expert in family law and marriage, Hong's scholarship focuses on the parent-child relationship with a particular emphasis on how family doctrines are altered or distorted when applied in other legal areas. Hong’s articles have been published in the University of Virginia Law Review and the Georgetown Immigration Law Journal and have been cited by the New Jersey Supreme Court.
“The executive order is comprehensive, meaningful, and measured. In terms of scope, those who will be benefit are not just parents of children who are either citizens or lawful permanent residents. It also affects people in the high tech sector, it affects skilled workers, it makes it easier for eligible people to apply for citizenship and business visas, and it eliminates the Secured Communities Program, which is a very controversial program between states and the federal government over identifying criminal aliens. The scope is very impressive and responds to administrative and substantive complaints with the existing law.
The reforms are meaningful. Unlike the prior actions by President Obama that in practice, did not offer status or work permits, this reform is going to offer meaningful, real reform to the millions of eligible people. This is the first substantive, broad scale immigration reform we have seen in 17 years.
What I find surprising is that, looking past the numbers and types of beneficiaries, it is a very measured and conservative response to the immigration crisis. The only people who will receive status are those with existing familial bonds or existing high-skilled employment. Those with any prior contact with law enforcement do not look eligible for these reprieves.
For many, I'm certain that limiting reform to those without any blemishes is the precondition for this action. In my law practice, I dealt with people with blemishes who did not stumble after their first contact with the law. I’m very sympathetic to that population and this reform doesn’t affect those people. Prior immigration laws from decades ago did protect this population but these measures do not. I’m struck at how in many ways conservative and measured this reform is.”
He’s been promising to take unilateral immigration action for months and now President Obama is following through. Tonight he’ll make a prime time address to the nation outlining why he’s signing an executive order that could help keep as many as five million illegal immigrants in this country. The question now is whether he has the legal authority to do so.
“The answer is yes and it should be pointed out he has the authority to do much more,” says Boston College Law Assistant Professor Kari Hong, an immigration lawyer. “Everything President Obama is contemplating is authorized by the Constitution and is expressly enumerated in the Immigration and Naturalization Act, and that’s an authority Congress gave the President in 1952. President Obama's proposal is based on a long-standing power and has been exercised by President Obama’s predecessors on numerous occasions for more than 60 years.”
Hong says the Obama administration has not one but three legal categories allowing for the executive action on immigration. The first is Prosecutorial Discretion:
“The decision not to enforce a law is exercised a thousand times a day,” says Hong, who has represented non-citizens in asylum and removal defense cases, among others. “For everyone who talks themselves out of a speeding ticket, they have done so not because they are clever, but rather because the Constitution and all relevant legal authority says the arresting office has the discretion not to arrest and not to prosecute someone - even though they violated the law. That is a sound exercise of legal authority that all law enforcement officers have. President Obama, as the person in charge of the Executive Branch, is simply directing all immigration officers to no longer enforce immigration laws with respect to certain people. He has the discretion and authority to tell all ICE officers that when they interface with a certain class of immigrants to no longer arrest and prosecute them.”
The Immigration and Naturalization Act has two means by which President Obama can provide temporary legal status, including work permits, to classes of people: Deferred Action, which allows the Department of Homeland Security to not take any action against a certain class of people for a set temporary period of time, and Parole.
"Parole is the decision to permit people to enter the United States for humanitarian reasons or for significant public benefit” says Hong, who has represented immigrants for more than a decade. “Over the past 34 years, five presidents from both parties have expressly used these powers to prevent the deportation and removal of hundreds of thousands of people. President Obama's actions are different only in scope. By attempting to protect five million people, Obama most certainly will have a political problem on his hands. He does not, however, have any legal or Constitutional problem."
While Republicans have vowed a legal challenge, Hong says President Obama is on solid Constitutional ground.
“The Republican complaint is that President Obama is exceeding his authority under Article One because Article One says only Congress can make new laws,” says Hong. “The problem with that argument is that the exercise of Executive power is not creating a new law.
“If the president tries to create a new law, he can’t do that. If he tries to create a new remedy, he can’t do that. But he can provide temporary legal relief for certain classes of people and that is fully within his power. Will people challenge it? Probably. But will those challenges survive in court? Probably not.”
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