Thirty Democrat members of Congress in a recent letter to President Obama urged him to suspend deportation of undocumented workers. Programs like secure communities are causing the proliferation of non-violent offenders being placed in removal hearings. As ICE’s statistics show 68% of immigrants removed are non-violent offenders. Recently, the National Day Laborer Organizing Network (NDLON) along with six individuals did more than write a letter. They submitted a formal request to the Department of Homeland Security (DHS) asking the agency to temporarily suspend the deportation of low-priority undocumented workers and their families and grant them deferred action. They argue that DHS should suspend the deportation of those who would have benefited from the Senate’s immigration bill S.744.

This request is a petition for rule making, provided under federal law. Under the federal Administrative Procedure Act, federal interested persons have the right to petition for the repeal, amendment, or issuance of a rule. If the federal agency, in this case DHS, doesn’t respond to the petition, the interested person can file a lawsuit in federal court asking a judge to order the agency to respond. This just means that the agency must answer the petition and provide an explanation for its answer. DHS doesn’t have to agree with the petition.

This type of executive action is unique. Presidents have used their constitutional authority to make decisions about enforcement priorities. In the past, such authority has provided benefits under Temporary Protected Status to diverse groups like Haitian, Syrians, and El Salvadorians to name some. More recently on June 15, 2012, the President announced Deferred Action for Childhood Arrivals (DACA). This program offers deferred action to young people who were brought to the United States as children and who meet other specified criteria. Requests for DACA are decided on a case-by-case basis. In fact, NDLON proposes the DHS to expand DACA to include undocumented workers and family members who don’t presently qualify under DACA.

In his State of the Union speech President Obama said that where Congress doesn’t act, he will. This is one area he has the authority to act. The President through DHS could expand DACA to include other groups of undocumented individuals and temporarily avoid their deportation. It would only be a temporary program, since only Congress can pass laws creating permanent solutions. The President would be saying he won’t enforce the law to deport certain individuals who meet specified criteria and grant them certain temporary benefits.

If you have any questions about immigration or immigration reform, you can contact our knowledgeable staff at 888-695-6169