Obama Takes Action on Guns and Immigration: Now It’s Congress’ Turn

Originally posted on Huffington Post

It feels like déjà vu all over again.

The Congress — in particular the Republican-controlled House of Representatives — is unwilling or incapable to act decisively to solve an urgent issue of national importance. The president, understanding that inaction is simply not an option, uses his executive authority to put the law to work for the American people. The “just say no” crowd recoils, accusing the president of a brazen power grab that offends the Constitution.

I’m referring to what happened a little more than six months ago when President Obama used hisexecutive authority to grant DREAM Act eligible youth a temporary reprieve from deportation. The reprieve, known as Deferred Action for Childhood Arrivals, was derived from the legal tradition of prosecutorial discretion, and implemented to give deserving undocumented youth a chance to temporarily step out of the shadows without fear of arrest and removal from the U.S. Since June the Administration has granted deferred action to more than 150,000 undocumented immigrants.

You could be forgiven for thinking I was referencing what happened last week when President Obama issued a series of executive orders designed to keep guns out of the hands of criminals and people with mental health issues. Among other things, the orders use laws already on the books to improve information sharing among state and federal agencies so that deadly weapons, including military-style assault weapons, are not sold to people who will massacre Americans while they’re in a classroom, enjoying a movie, or otherwise living their lives.

Importantly, these stop-gap measures on gun control and immigration give Congress the space and opportunity to enact permanent legislative solutions, which will, hopefully, make America safer and fix its dysfunctional immigration system.

Moreover, by decisively using his executive authority, the president is following through, pushing forward the “will of the people” instead of doing nothing. National polls continue to show that Americans — including many members of the NRA — overwhelmingly favor common sense restrictions on guns. Through rigorous enforcement of the laws already on the books President Obama is doing what the American people demand but what Congress is scared to do. He is taking bold action to save lives and show the American people that he listens and cares about their safety.

And the same holds true for immigration. As even the newest polls show, the majority of Americans — including Republicans, Democrats, and Independents — want the immigration system fixed; they want a safe border and an immigration policy that serves the needs of American families and businesses, and includes a pathway to earned citizenship for the millions of undocumented immigrants living in the shadows. Yes, the system is broken, but the president is well within his rights to use his executive authority to make sure the law is administered as intelligently and humanely as possible until Congress acts to fix it.

But, as Mr. Obama reminded the nation last Wednesday, when it comes to changing the law he cannot do it alone. Real change can come only when the American people demand it, whether it is to ban semi-automatic assault weapons and high capacity clips or enact an overhaul of the immigration “system” we currently deal with, made up of a mismatched patchwork of policies and procedures.

For their part, the Republicans, the NRA leadership, and the anti-immigrant restrictionists need to stop with the sour grapes and recognize that the American people put their trust in President Obama last November. They have every right to oppose him on the issues, but they owe it to the country to do so responsibility, by offering up real policy solutions rather than empty rhetoric and personal attacks.

After all, the entire nation wins when its leaders take bold action to protect the American people.

Making Sense Of Yesterday’s USCIS DACA Guidance: Lawful Status vs. Lawful Presence

After the USCIS issued its supplemental DACA guidance yesterday, which included FAQs that stated individuals granted DACA are not considered to be “unlawfully present” in the US, I received many messages from DREAMers, reporters, and others wanting to know what it meant.  Has the USCIS declared that deferred action confers legal status?  If so, why does the USCIS guidance also plainly state that “deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence”?

Can both be true? Yes. And here’s how:

The language of the USCIS guidance is very technical. Since 1997 the law has included the concept of “unlawful presence”.  It refers to noncitizens who remain present in the US after an illegal entry or the expiration of an authorized period of stay in the US, such as a visitor who fails to depart. A noncitizen who remains unlawfully present in the US for more than 6 months can be barred from returning for up to 10 years.

A few years ago USCIS issued consolidated guidance in which it interpreted “unlawful presence” for purposes of applying the bars to readmission.  USCIS said that aliens granted deferred action are considered to be in a period of stay authorized by the government.  It follows then that once a DREAMER is granted DACA his or her stay in the U.S. is authorized by the government, albeit temporarily, and he or she is lawfully present.

Why then does the USCIS say that DACA confers no lawful immigration status?

Because, lawful immigration status refers to an immigration benefit such as lawful permanent residency (green card), temporary visa classification, i.e. H-1B worker, B-1 visitor, or F-1 student, or the parole authority of the Department of Homeland Security.  Deferred action, including DACA, is an exercise of prosecutorial discretion in which the government has decided to temporarily defer removal action against a foreign national.  As the USCIS says on its website:

DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines.  Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

Nevertheless, yesterday’s guidance is important; especially to individuals granted DACA who wish to drive.  Many states have a very difficult time understanding immigration law and discerning who is lawfully present and who is not. Some states have refused to issue drivers licenses to DACA grantees incorrectly reasoning that since deferred action does not confer lawful immigration status, individuals granted DACA are not authorized to be in the U.S.

While the federal government cannot force states to issue drivers licenses to individuals granted DACA,yesterday’s guidance makes it crystal clear that DACA is a period of stay authorized by the Department of Homeland Security.  Therefore, DREAMERs granted DACA should not be denied drivers’ benefits on the basis of their immigration status.

One final thought; the confusion over lawful immigration status and unlawful presence underscores the need for immigration reform. America needs a user-friendly immigration system; not a patchwork of rules and regulations so convoluted that it takes an immigration attorney to make sense of them.