Four legal scholars told the president in a letter that he can legally use his executive authority to extend deportation deferrals to the parents of young immigrants, even if their children are not citizens or legal residents.
In the Nov. 3 letter obtained by NBC News, the scholars said that “there is no legal requirement that the executive branch limit deferred action or any other exercise of prosecutorial discretion to individuals whose dependents are lawfully present in the United States.”
In fact, the scholars wrote, the law does not require they have any dependents at all.
The lawyers said they were not taking a position on who should have been included in the president’s executive action. But they insisted that the president was not limited in using prosecutorial discretion by whether an immigrant’s children are lawful residents or citizens. Such decisions “are policy choices, not legal constraints,” the lawyers said.
The letter preceded the president’s announcement that he would use executive authority to make about 4 million people eligible for temporary protection from deportation and provide many of them work permits.
Many advocates and immigrants had hoped Obama would include the parents of children who came to the country or remained in it illegally in his executive action. Some of those young immigrants were given deportation deferrals under the Deferred Action for Childhood Arrivals, or DACA, that Obama enacted through executive action in 2012.
The law professors' view contrasts with that of the Department of Justice's Office of Legal Counsel, which advised the White House that providing deportation deferrals to parents of DACA children "would represent a significant departure from deferred action programs that Congress has implicitly approved in the past," the Washington Post reported.
The law professors' view builds on their argument made in their first letter that prosecutorial discretion - the leeway to decide how to enforce certain laws - is a long accepted legal principle. The professors cited examples over the years that show deferred action has been granted on the basis of age, years in the country, mental and physical health or because the person is a caregiver. In 2005, foreign students affected by Hurricane Katrina were granted deferred action, as were the DACA youth.
The president’s decision to use executive authority following failure in Congress to implement immigration reform has drawn heavy opposition from Republicans, who have called the action unconstitutional. They held two congressional hearings Tuesday assailing the president’s executive action and have been considering options for blocking the action.
The legal scholars who signed the letter were Shoba Sivaprasad Wadhia, Pennsylvania State Dickinson School of Law; Stephen Legomsky, Washington University School of Law; Hiroshi Motomura, University of California, Los Angeles School of Law and Michael Olivas, University of Houston Law Center.
They described themselves as law professors with particular expertise in the interaction of executive action and immigration law.