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Just as the Patient Protection and Affordable Care Act has been faced with legal challenge, President Barack Obama’s immigration action is under attack, with a U.S. District Court for the Western District of Pennsylvania ruling that the action is unconstitutional.
“The decision was odd but predictable in the political climate we are in, where it is permissible to criticize or complain about decisions made by the government with or without a legal foundation,” Shoba Sivaprasad Wadhia, professor at Pennsylvania State Dickinson School of Law, told SHRM Online. “The effect of the decision is likely to be little or none as the case itself is about a single individual who pled guilty to re-entry after removal. The effect, if any, is likely to be political as opposed to legal, and perhaps [will] provide the administration with some pointers about how to proceed with the politics of the Nov. 20 actions moving forward.”
Wadhia, who is director of the Center for Immigrants’ Rights Clinic, added that “In the world of law and order, the memo is an outlier. In the world of politics, the decision is politics as usual.”
She foresees more legal challenges to the immigration action, “but the important question is whether these challenges are symbolic or real.”
And she added, “Critics of executive action are angry at President Obama for using prosecutorial discretion. … Memos like the Pennsylvania decision are but one outlet for expressing this anger. Ultimately, I am unpersuaded that such decisions will change the direction or outcome of the president’s actions.”
The decision “probably will have no legal significance,” said Mira Mdivani, an attorney in Overland Park, Kan. “But it will provide fodder for talk show pundits who are mad about the president’s executive action.”
“The legal community—those of us really close to the issue—were not really surprised” by the decision, remarked Kevin Lashus, an attorney with Jackson Lewis in Austin, Texas. “We all need to understand that immigration, and the reform as proposed by the Obama administration, bring out very visceral feelings. Those who have strong feelings one way or the other are not going to be persuaded to move from those opinions. I think this court’s opinion offers a glimpse at how those who oppose the administration’s announcement intend on preparing for litigation to stop implementation.”
Referral to Homeland Security
The Dec. 16, 2014, decision by U.S. District Judge Arthur J. Schwab in Pittsburgh, a 2002 appointee of President George W. Bush, arose from a criminal case involving an undocumented immigrant, Elionardo Juarez-Escobar, who has pled guilty to the charge of re-entry of a removed alien—having been deported in 2005 to Honduras and immigrated back since then—and is awaiting sentencing.
Juarez-Escobar is arguably subject to unequal and arbitrary immigration enforcement in the United States, the court stated. In 2014, he was arrested for driving under the influence (DUI). A minor also was in the vehicle. Juarez-Escobar was charged with two counts of DUI, corruption of minors, selling/furnishing liquor to a minor and driving without a license. He also was referred to the U.S. Department of Homeland Security, which determined he was unlawfully present in the United States. If Juarez-Escobar had been arrested for DUI in a sanctuary state or city, local law enforcement likely would not have reported him to Homeland Security, the court stated.
When asked by the court whether the president’s immigration action applied to Juarez-Escobar, his attorney indicated that it might since deferred action will be available for undocumented parents of U.S. citizens or permanent resident children. The court noted that it wasn’t clear whether Juarez-Escobar was the father or stepfather of a U.S. citizen, but went on to examine the constitutionality of the immigration action.
While the parental form of deferred action will not be available for at least 180 days, the court noted that 180 days may elapse before Juarez-Escobar appears before an immigration judge in a civil removal proceeding.
The court observed that under Deferred Action for Parental Accountability (DAPA), an undocumented immigrant would be eligible for deferred action if he or she applied for deferred action and if he or she:
The Pennsylvania district court stated that prior to the executive action, Obama often said that executive action on immigration “similar to the one issued” would exceed his executive powers. He also said that “systematic categories of delayed deportations would be impracticable and unfair.”
But once he issued the executive action, the court said, “President Obama contended that although legislation is the most appropriate course of action to solve the immigration debate, his executive action was necessary because of Congress’s failure to pass legislation, acceptable to him, in this regard. This proposition is arbitrary and does not negate the requirement that the Nov. 20, 2014, executive action be lawfully within the president’s executive authority.”
The court stated that “perceived or actual Congressional inaction does not endow legislative power with the executive.”
It then added that “President Obama stated that the only recourse available to those members of Congress who question his wisdom or authority in this regard would be to ‘pass a bill’ and that ‘the day I sign that bill into law, the actions I take will no longer be necessary.’ Presidential action may not serve as a stop-gap or a bargaining chip to be used against the legislative branch.”
The court went on to hold that the executive action goes beyond prosecutorial discretion and is legislation. It reached this conclusion because the executive action:
On the Other Hand …
While holding that the executive action was unconstitutional, the court also ruled in the alternative that if the action were constitutional, the priorities for removal of undocumented immigrants would not apply to Juarez-Escobar. But he was not clearly entitled to deferred action either, falling instead into a “no-man’s land,” the court determined.
Since he possibly is not a parent as defined by the Department of Homeland Security’s memorandum, Juarez-Escobar may not be entitled to defer deportation, the court explained. But since he is “more ‘family’ than ‘felon,’ and consistent with the overarching sentiment behind the executive action, defendant may be eligible for deferred action status and its substantial rights and benefits,” the court waffled.
The court gave Juarez-Escobar some choices, ordering that he either:
This decision is United States of America v. Juarez-Escobar, Criminal No. 14-0180 (W.D. Pa. 2014).
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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