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Obama’s New Executive Rule – Favorable for Immigrants but What does it mean for the power of the presidency?

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Although his record on deportation might have led to a record number of deportations last year, President Obama is at least making  a paltry attempt worthy of some praise in trying to help those illegal immigrants who are the immediate relative of a US citizen receive their green card.  The New York Times announced on January 6 that the administration is trying to implement a new regulation that will allow illegal immigrants who are the immediate relatives of US Citizens to receive their green cards abroad without the 3 or 10 year bar of re-entering the country apply to them.  The 3 or 10 year bar has been in place because of the illegal presence of these individuals in the United States.  Previously, the only relief for such a bar was the 212i waiver of inadmissibility.  However, these waivers are often difficult to adjudicate as they require a case of “extreme hardship” to the US Citizen Immediate relative which is not only a very high standard but also can take extended periods of time over a year.  This new proposal would allow these illegal immigrants to receive the waiver from USCIS prior to departing to their respective home countries to receive their green cards. 

Obviously, this is just a proposal and even if it were to pass would affect a small group of people as many are already out of the country and those here even if the waiver is granted would have no assurance of return.   This proposal of 240B (d)  also only applies for those who had left the country after an illegal stay in the U.S. of over 180 days or 365 days.

“Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I–130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the alien as an ‘‘immediate relative’’ for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the alien’s U.S. citizen spouse or parent ‘‘qualifying relative.’’ The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the alien relative’s behalf.” – Federal Register /Vol. 77, No. 5 /Monday, January 9, 2012

This proposed change does not come without controversy.  Representative Lamar Smith, Chairman of the House Judiciary Committee,an d well-known for his harsh stance on immigration called this an abuse of administrative powers.  However, immigration lawyers, immigration advocacy groups, and Latino organizations are hailing this as a step in the right direction.

This measure is certainly a step in the right direction as it will provide both shorter waiting times and more transparency in the process for illegal immigrants to receive their green card.  It will also ease the process for the Department of State and USCIS with 212(i) or I-212 (permissions to re-enter)  waivers as there will be fewer to adjudicate. 

Although I do not agree with Representative Smith’s statements, there are issues of administrative law that come into play here that cannot be ignored.  How much executive power should the President have over immigration regulation?  Although this new regulation is viewed favorably by immigration advocacy groups and attorneys, it could easily be repealed by a later president, or perhaps even this President.  Such a regulation is only temporary and may only provide a “quick fix.”  Additionally, it also opens a Pandora box for this President and later Presidents  to try institute immigration regulations without   having the necessary research and testimony on Capitol Hill to truly understand the ramifications of such a decision.  While the President is technically allowed to implement such a regulation without the authorization of Congress, it  also still is possible for Congress to intervene and say that President Obama cannot pass such a measure.  It would be a travesty if Representative Smith or others on the Hill reversed this measure simply for political motives.

On the broad perspective this executive rule  is much like using a fly swatter to  eliminate a swarm of bees on the immigration issue.

Executive Rule making has always come with some controversy.  This is one area however that goes to the root of our immigration system and seeks to preserve family unity on a very limited scope.   Therefore, this is an executive rule that Lamar Smith shouldn’t seek to oppose but rather incorporate into congressional legislation.  But more importantly, it points to the broader issue – how much direct control should the president have over immigration?

Filed under: Immigration Issues

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