Two Former INS General Counsel Discuss Executive Branch Immigration Authority
Dallas, TX (Law Firm Newswire) June 20, 2011 – Despite being one of the most-discussed issues in contemporary politics, immigration reform has been at a relative standstill at the federal level for almost a decade. But two former U.S. Immigration and Naturalization Service General Counsels argue that the executive branch of the government can actually implement change without waiting for Congress to pass a bill.
Bo Cooper, Esq. and Paul Virtue, Esq., both former INS General Counsels, recently stated that law enforcement authority to use discretion in investigations and prosecutions is not just possible; it is “fundamental to the American legal system.” The legal system permits law enforcement officers and other executive branch members such as the President and the Department of Homeland Security discretion to decide whether to deport illegal immigrants in most cases.
“The executive branch has more authority in immigration matters than its is willing to exercise. It could expand Parole-in-Place and permit persons who merit the favorable exercise of discretion to remain in the U.S., and even be able to adjust their status to that of lawful permanent residence if its chooses. Or it could defer action against persons meriting such discretion to remain in the U.S. by a formal application process,” says Dallas immigration attorney Stewart Rabinowitz of the firm of Rabinowitz & Rabinowitz, P.C.
The executive branch often grants a case “deferred action” and chooses not to prosecute certain illegal immigrants, even though they are otherwise deportable. The DHS secretary has previously granted this to widows of U.S. citizens who could not adjust their status due to their spouse’s death. Over 12,000 individuals who were applicants for the Violence Against Women Act were also granted deferred action in 2010.
The President can take action to change immigration law with a “signing statement.” Presidents George H.W. Bush, Clinton, George W. Bush and Obama have all issued signing statements in the past, many of them relating to immigration, and President Obama could choose to enact further changes if he chooses.
“For a significant minority of cases, it is tragic that the executive branch chooses exercise its power so stingily, and looks only to Congressional action as a means to implement any significant change,” Rabinowitz says.
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