By R. Mark Frey
ST. PAUL (June 30, 2012) — The past month has been eventful with immigration issues brought to the fore by the Obama administration’s June 15, 2012 Memorandum on deferred action for those individuals coming to the United States as children and the U.S. Supreme Court’s June 25, 2012 decision (Arizona v. United States) on that state’s legislative effort (SB-1070) to regulate immigration.
The Memorandum, issued by Department of Homeland Security (DHS) Secretary Janet Napolitano, states that this nation’s laws are not “designed to be blindly enforced without consideration given to the individual circumstances of each case.” (That’s what’s known as prosecutorial discretion and that’s what the authorities have exercised for many areas.)
The basic eligibility criteria for deferred action are that an individual:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years prior to the Memorandum’s issuance on June 15, 2012 and is present in the United States on that date;
• is currently enrolled in school, graduated from high school, obtained a General Education Development Certificate (GED), or is an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces;
• has not been convicted of a felony offense, a “significant misdemeanor offense”, 3 or non-significant misdemeanors, or otherwise poses a threat to national security or public safety; and • under the age of thirty-one years on June 15, 2012.
Those young people qualifying for this relief will be able to come out of the shadows, attend school, and obtain work authorization for periods of two years.
In his remarks following issuance of the Memorandum, President Obama noted pointedly that this action reflects an effort to “mend our nation’s immigration policy, to make it more fair, more efficient, and more just” for those who were brought here as children through no fault of their own. He further states, “(I)n the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” He emphasizes, “(W)e have always drawn strength from being a nation of immigrants, as well as a nation of laws, and that’s going to continue. And my hope is that Congress recognizes that and gets behind this effort.”
The second key event took place on June 25, 2012, when the U.S. Supreme Court ruled in Arizona v. United States that a state may not usurp federal law by passing its own immigration legislation. Four key provisions of that state legislation (SB-1070) were reviewed by the Court and three were found to be unconstitutional: it is a state crime for either a foreign national to violate federal immigration law by failing to register or seek/engage in work without authorization; and a state officer may arrest a person without a warrant if that officer believes a person violated a public offense which would make that person removable from the United States. The Court ruled in very clear terms that the Constitution does not allow a state to take an area of federal law into its own hands. Immigration law is the province of the federal government.
The Court found, however, that the fourth provision under review was constitutional, at least at this point in time. State officials may make a reasonable attempt to verify the immigration status of any person encountered through a stop, detention, or arrest who they reasonably suspect of being an “alien and unlawfully present in the United States.” That is, state officials may not use reasonable suspicion alone to ask about one’s immigration status but may do so after a stop, detention, or arrest. On its face, this sounds reasonable. But, the devil is in the details and the basis for initiating that stop, detention, or arrest may actually be for the purpose of checking that individual’s immigration status. In short, racial profiling may be behind such an encounter.
Although the Court did not rule out the possibility that problems may arise from this provision, it took a wait and see approach to allow for the possibility of later review through subsequent litigation. President Obama acknowledged as much on the day of the Court’s decision with his cautionary words, “we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans…what makes us American is not a question of what we look like or what our names are. What makes us American is our shared belief in the enduring promise of this country.”
The significance of these two recent events cannot be overstated. The U.S. Supreme Court has declared emphatically that immigration is a matter under the control of the federal government, not our states. In doing so, it has also indirectly endorsed the Obama administration’s recent action regarding prosecutorial discretion, deferred action, and young people brought to the United States as children. In short, an administration has the power to exercise discretion in how it directs its resources while enforcing our country’s immigration laws.
This is without doubt encouraging and cause for jubilation. But, to be frank, our immigration system is in sorry need of repair. Many issues need to be addressed and for far too long, they have been ignored. Let us hope that this recent flurry of activity is a sign of things to come and a recognition that the time for comprehensive immigration reform is now.
R. Mark Frey is a St. Paul, Minnesota attorney who has been practicing immigration law exclusively for almost 25 years with an emphasis on political asylum, family immigration, naturalization, and removal defense.