Of course, the big news in the immigration world right now is President Obama’s various executive actions to change immigration policies. Politicians either strongly support the President’s move, or they just as strongly disapprove of his actions. Those against assert that President Obama has appointed himself “King” or “Emperor” and is failing to carry out the laws passed by Congress as required by the Constitution. This portrayal is inaccurate to say the least.

It really comes down to a simple concept, and that is resources. Congress only appropriates funding for U.S. Immigration and Customs Enforcement (ICE – the agency responsible for removal enforcement) and the immigration courts sufficient to deport approximately 400,000 individuals out of the more than 11.7 million undocumented foreign nationals living in the United States. Notwithstanding President Obama’s record efforts to deport those in the U.S. unlawfully (during his tenure, he has deported over 2 million people here without documentation), it is impossible to come anywhere near removing all individuals here illegally. Even if there were the people and infrastructure to do so (which there isn’t), there is nowhere near the funding to do so.

So what is a President to do? He prioritizes (more formally called prosecutorial discretion – long held within the power of the executive branch). In President Obama’s case, he has determined to focus removals on three levels of priorities. Priority 1 are those foreign nationals here unlawfully who represent threats to national security, border security, and public safety. This includes individuals engaged in terrorism or espionage; apprehended at the border or ports of entry while attempting to enter the U.S. illegally; convicted of a gang-related offense; or felons. Priority 2 are those foreign nationals here unlawfully who have been convicted of multiple misdemeanors; or convicted of one “significant” misdemeanor such as domestic violence, sexual abuse, or unlawful possession of a firearm. Priority 3 are those foreign nationals who have been issued a final order of removal on or after January 1, 2014. As the lowest priority for apprehension and removal, ICE must assess whether the foreign national is not a threat to the integrity of the immigration system or whether there are factors suggesting the foreign national should not be an enforcement priority.

Okay – fair enough. You can’t deport everyone, so you need to pick who to deport with some level of organization. But what really has people up-in-arms is the “deferred action” President Obama is awarding two large classes of people: children who came here unlawfully while very young (16 or younger), and parents of U.S. citizen or lawful permanent resident children. Those against the President’s actions are particularly upset with his use of deferred action because with deferred action comes temporary work authorization.

Bottom line, deferred action is just another kind of prioritizing in light of limited resources. President Obama has determined, pursuant to his executive authority, that equities are in favor of deferring instigating removal proceedings against individuals in these two classes (assuming they do not fall within one of the priority levels – if they do, all bets are off).

Those equities include not holding it against individuals who were brought to the United States by parents when they were young and were not part of the decision-making process to be here unlawfully, who know no other home or culture, and who are fully assimilated. Those equities also include keeping families intact where children – lawfully here as U.S. citizens or lawful permanent residents – should not have to worry that Mommy or Daddy are not going to come home one day. Without deferred action, children could either be forced to live without a parent(s), or our government would essentially be forcing our own citizens and lawful permanent residents to give up their home in the United States as the only way to stay with their parent(s). As a policy, it makes sense to not require our citizens and long-term lawful residents to make the impossible choice of losing a parent (or parents), or leaving their own country to go to one for which they have no familiarity, with lesser opportunities, and with potentially limited language skills.

The long term solution to the hue and cry is for Congress to pass a responsible comprehensive immigration bill that is fair and balanced. Congress must acknowledge and account for our large population of undocumented immigrants and find a long-term solution to their presence such as earned adjustment. This must be balanced with showing fairness to those foreign nationals going through the long and arduous process to become members of our community lawfully by increasing visa numbers or counting their use more favorably. A difficult task for sure, but until this challenge is met, President Obama and any subsequent President (Democrat or Republican) will be faced with having to make choices based upon the realities of limited resources.

Posted by: Sarah Duckham, Senior Attorney