President Obama: 2 Simple Fixes to our Immigration System You Can Do Right Now (without stepping on Congress’s toes).
By Mitchell J. Cohen, Esquire
U.S. Immigration law has been aptly characterized as byzantine, involving a tangled web of statutes, regulations, treaties, policies, as well as an array of administrative and judicial decisions trying to make sense of it all. President Obama has repeatedly decried our immigration system as “broken.” In the absence of Congressional movement on immigration reform, President Obama has promised to take executive action to provide some measure of relief to a portion of our country’s estimated 12 million undocumented immigrants (give or take a million). Having promised unilateral executive action by summer’s end, the Obama administration now appears to be relocating another ephemeral line in the sand, much to the chagrin of many immigration advocates, undocumented immigrants and their families. What can the President do, legally, immigration-wise, by himself, without Congress? Given the fact that the president has again apparently hit the pause button on his stated plan to provide additional immigration relief, I believe that it would behoove his administration to use this breather to carefully examine options for executive immigration reform employing laws already on the books. As an attorney who has been practicing immigration law in the greater Miami area for over 15 years, I have a couple of modest suggestions for executive action, that if implemented, will likely legalize a sizable portion of our undocumented immigrants, without stepping on the toes of the legislative branch.
Simple Fix #1: Expand use of “Parole in Place” to allow certain relatives of U.S. Citizens to apply for green cards.
Contrary to popular belief, marriage to a U.S. Citizen does not automatically result in a green card for a foreign national spouse and the citizen’s stepchildren. Many would-be lawful permanent residents living in the United States are barred from receiving green cards due to the manner they entered the United States. Entry without inspection by land or sea is a legal barrier to many of the “undocumented” gaining lawful permanent resident (“green card”) status. Many of these same individuals are in the catch-22 of not being able to leave the United States to be processed through the U.S. embassies in their countries, due to a rather draconian provision of a 1996 law that operates to lock people out of the United States for 3 or 10 years, depending on the length and quality of their “unlawful presence” in the United States.
It may come as a surprise to many that the Department of Homeland Security already has at its disposal a legal mechanism to allow these relatives of U.S. Citizens to apply for green cards without leaving the United States. It is called known as “parole.” Parole, sometimes referred to as “humanitarian parole” is a feature of our existing immigration law. Parole permits an otherwise ineligible foreign national to enter the United States or alternatively parole may be granted to individuals already in the United States, who were not processed through a port-of-entry. This latter use of parole is known as ”parole in place.” Under Section 212(d)(5) of the Immigration and Nationality Act the DHS may parole an foreign national “for urgent humanitarian reasons or significant public benefit.”
Parole in place has been in use during both Republican and Democratic administrations to facilitate lawful permanent residency for individuals who would be eligible to apply for a green card but for their lack of inspection and formal “admission” to the United States. The DHS as a matter of routine, issues parole-in-place to Cuban nationals who arrive irregularly on U.S. soil by sea or land. The reason for the parole is to position these individuals to benefit from the “Cuban Adjustment Act,” which requires that the applicant have been legally “admitted” or “paroled” into the United States. Last year, U.S. Citizenship and Immigration Services, a bureau of DHS, issued a policy memorandum recapitulating the legal theory behind “parole in place,” and streamlining the parole in place application process for certain individuals affiliated with the U.S. Armed Services and as well as their relatives. As per the November 15, 2013 memorandum, parole in place trumps the ordinary bars to permanent resident status for those who entered the U.S. without inspection.
Expanding the general use of “parole in place” to foreign-born spouses, parents, and certain minor stepchildren of U.S. Citizens would position these relatives to be able to apply for permanent resident status in the United States.
Simple Fix #2: Follow the 6th Circuit Court of Appeals, which found that individuals granted Temporary Protected Status are correctly classified as having been legally inspected and admitted to the United States.
Presently there are an estimated several hundred thousand individuals in the United States who have been given a temporary reprieve from deportation due to strife or natural disasters in their country, under a humanitarian provision of our immigration law called “Temporary Protected Status” (TPS). As present the following countries are designated for TPS: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria. In order to qualify for TPS most beneficiaries had to demonstrate that they were residing in the United States at a time prior to the designation of their country for TPS. Some countries have been TPS-designated for well-over a decade, such as El Salvador (since 2001), Honduras (1999), and Nicaragua (1999). These individuals remain mired in an uncertain immigration legal limbo, never knowing whether their country’s TPS designation will finally run out. Many have U.S. citizen spouses, or adult U.S. citizen sons or daughters, but cannot apply for a green card due to their having entered the United States without inspection.
Last year in the case of Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) the Court of Appeals for the 6th Circuit held that the government’s grant of Temporary Protected Status to an individual who entered the U.S. without inspection constituted a legal inspection and admission into the United States. The import of the court’s decision is that it qualified such person to apply for permanent resident status through certain U.S. citizen relatives. Unfortunately, the USCIS has not adopted the 6th Circuit’s holding nationwide, and as a consequence, it remains binding on immigration cases only within the jurisdiction of that court (Michigan, Ohio, Tennessee, and Kentucky). In an October 23, 2013 Question and Answer session with the American Immigration Lawyers Association, the USCIS “Service Center Operations Directorate” declared that outside of the 6th Circuit’s jurisdiction “[t]here are no plans at this time to give broader recognition to [Flores v. USCIS].” Adopting the Flores holding nationwide would provide legal cover for potentially thousands of TPS holders who entered without inspection to obtain permanent resident status through certain U.S. Citizen immediate-relatives.
Yes You Can
The measures I suggest are not presented as a panacea, nor am I suggesting that they constitute the entire set of legal tools at the President’s disposal with which to tweak our immigration system. An invisible sword of Damocles hangs over the heads of our undocumented immigrants, many of whom have lived and worked in the United States for years or even decades, and have immediate relatives who are U.S. Citizens. These measures may help a sizable fraction of the undocumented achieve lasting legal status in the United States, including a lawful pathway to eventual citizenship for some. The President’s authority is not unfettered, however I hope that my examples of potential executive policy fixes illustrate that, when it comes to implementing meaningful immigration reform, the President’s hands are far from tied.
Mitchell J. Cohen is a 15-year member of the American Immigration Lawyers Association and Member of The Florida Bar, with law offices in Hallandale Beach and Fort Myers, Florida. He has extensive experience litigating cases before the USCIS, Immigration Courts, and Board of Immigration Appeals.
Hallandale Beach (Main) Immigration law Office: Fort Myers Immigration Law Office:
1250 E. Hallandale Beach Blvd., Ste. 500 3620 Colonial Blvd., Ste. 160
Hallandale Beach, FL 33009 Fort Myers, FL 33966
Tel. (954) 457-1941 Tel. (239) 931-6558
This article is general in nature, and not intended as legal advice.