Executive Action Immigration

Obama’s November 2014 Executive Action

“If you want to test a man’s character, give him power” – Abraham Lincoln

“Answer not a fool according to his folly, lest thou also be like unto him.” – Proverbs 26:4


In November 2014, a Republican Senate was elected. Obama then announced some “Executive” actions:

  1. a. Deferred action for parents of US citizen children and green card holders;
  2. Expansion of the already implemented deferred action for childhood arrivals (DACA);
  3. Revamping of existing enforcement programs (I don’t quite know what that means);
  4. Allowing business minded aliens (entrepreneurs) easier access to the US;
  5. Expanding provisional unlawful presence waivers for green card holders;
  6. Assuring alien military families greater leeway;
  7. Faster adjustment of status adjudications;
  8. “Modernizing” the visa system (I don’t know what that means either); and
  9. New border “security” plans (traditionally, spending billions of dollars on plans that don’t work).

These executive initiatives don’t exist yet. When and if they finally do, they’ll differ from what Obama originally announced. So we can’t be too sure about what we’re hearing now. Already lawyers and organizations are frothing at the mouth to take fees for this. Be careful.

Why It’s A Bad Idea

Presidents “execute” the laws. They can’t create laws – that’s illegal. Congress creates the laws. All past presidencies before Bush II worked with Congress to pass immigration laws. Despite Obama’s endless tongue wagging before 2008 and since, he hasn’t worked with Congress to reform the immigration laws. So he’s now using voodoo executive power to placate voters: regulatory action.

An executive’s regulatory immigration powers serve a purpose. If unrest, war, or a natural disaster occurs abroad, those foreign nationals – aliens – can be protected while they’re in the US through an executive action called Temporary Protected Status (TPS). Another example is the I-601A waiver. Because tens of millions of illegal aliens are in the US, a logical outgrowth of the existing law is to expand the I-601 unlawful presence waiver’s provisions so that aliens living inside the US can apply for it (the I-601A Provisional Waiver). That is a logical implementation – execution – of the existing law. The existing law is the I-601 unlawful presence waiver.

But Obama’s recent executive action like DACA, and these others recently announced, aren’t laws. They are laws cloaked in regulatory garb. Why is that bad? Because they’re contrary to the existing immigration law, the latest revision of which came in 1997. Obama’s latest regulatory fingerings aren’t an intuitively logical implementation of existing law (like the I-601A waiver). DACA and these latest initiatives are contrary to the present immigration law; they’re contrary to the will of Congress.

Why Is It Dangerous?

First, I’ll provide a little background. Newt Gingrich’s 1990’s Republican congress was responsible for the current immigration law: 1997’s Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This law (i) created a vast gulag-type detention system for aliens; (ii) imposed very high legal burdens for aliens, and harsh penalties for immigration violations; and (iii) cost taxpayers untold billions. IIRIRA was a critical failure from the outset.

Like other Republican notions, its central tenant was based on 2 very old, traditional Republican beliefs: (1) if you punish something enough, it goes away; and, (2) the more force you use, the easier you’ll stop an unwanted event. But when law or policies are misguided, like IIRIRA, none of the targeted behavior stops. It just gets more creative. (IIRIRA’s most spectacular failure – and there are many – was creating a cottage industry for illegal immigration.) Once elected, Obama never worked with Congress to change IIRIRA. And he could’ve done so very easily during his first two years in office. IIRIRA was always a bad idea, a terrible idea. Obama neglected to properly modernize it. So he’s now “knee-jerking.” He’s attempting to compensate for his failure to work with Congress by using broad and extreme regulatory action. It’s irresponsible and dangerous. He’s playing a gigantic poker game with people’s lives. How?

Because executive actions are designed to be temporary emergency measures, they can be quickly halted once they achieve their purpose; that is, once a country becomes habitable again when war or civil unrest ends, or when a country fully recovers from a natural disaster.

But Obama’s regulatory actions aren’t being used for their designed purpose. He is cynically – and very likely unconstitutionally – bypassing the intent of Congress. These regulations are “shadow laws” seeking broad changes in policy contrary to existing law. (It doesn’t matter that the current law is terrible; it’s still the law. To change law, presidents must follow constitutional designs. Obama isn’t willing to do that.)

If another punishment-minded President and Congress take power in 2016, Obama’s regulatory actions will disappear in a puff of smoke. Aliens granted emergency residency suddenly wouldn’t have it. But the government still would have all the information from every one of these aliens. So then just as suddenly millions of aliens are at risk for deportation or removal. And – at any time – a Federal Court might deem these regulatory actions unconstitutional. That’s another way these regulations can all vanish. Not likely? Who’d ever guess that the US would one day have 250 concentration-camp style detention centers dotting the countryside? Do you want to take the chance?

What To Do?

If you’d like information on these regulatory initiatives, I’ll be happy to send it to you. But be careful. Lots of non-lawyer scam artists are anxious to take your money. Beware of immigration lawyers too. Do you think most of them are primary concerned with your welfare? . . . or in making a quick buck? Make sure you know. Be careful. If you’re in doubt, do nothing. Above all, be careful.

If you haven’t been inspected by a border officer (EWI – Entered Without Inspection), but you have a US citizen spouse, apply for an I-601A waiver. That waiver is based on law. If you fear persecution in your home country, you might apply for refugee status. If you’re an abused alien spouse, you can apply for VAWA protection. If you’re not sure what you might be eligible for, call me and we’ll talk about it.

All the above protections (part D) reflect the intent of Congress; they’re founded in law. Their end result is a green card. There is no end result to Obama’s regulatory initiatives; they are an amorphous, expedient, cynical, and questionably constitutional temporary fix. Under certain circumstances they might be an option if absolutely nothing else is available. The watchword is discretion: be careful. Above all, be careful.


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