The refusal by the current Congress to reinstate or codify the Deferred Action for Childhood Arrivals program (DACA) shouldn’t be the end of the story, according to a paper in the Lewis & Clark Law Review.
Although Congress has the exclusive authority to create new paths to citizenship, the Executive Branch—if it wants to—also has “discretionary” power to make it easier for children of undocumented immigrants to obtain permanent residence and citizenship, wrote Susan Dussault, an adjunct professor at the Lewis & Clark Law School.
“Suggesting ways that the Executive Branch could exercise its discretion in the context of immigration may seem foolish or naive, given the numerous political and legal challenges that have nullified the Obama and Trump Administrations’ recent forays into that realm,” she wrote.
“When Congress expressly delegates discretion to the Executive Branch, however, exercising that discretion within the clear parameters of that grant not only comports with, but bolsters, the separation of powers principle.”
Dussault, founder and executive director of Legal Immigration Services & Teaching for Oregon Students, wrote her paper before the midterm elections Tuesday changed the power balance in Congress and gave Democrats the majority in the House of Representatives.
With immigration still a radioactive issue in the country, particularly after the election campaign, there’s no certainty that it will be any easier for legislators to respond to calls to allow children brought to the U.S. by undocumented parents who had been allowed to stay under the Development, Relief, and Education for Alien Minors (DREAM) Act the chance to become citizens.
But her paper provides a possible pathway that would support a more pro-active role by the President, who has at times said he favors allowing individuals who qualify under DACA to stay in the country.
According to Dussault, the Executive Branch has the discretion, for example, to allow noncitizens to join the U.S. military and subsequently earn expedited citizenship through their service. Section 10 of the U.S. Code allows noncitizens, including those present in the U.S. without legal immigration status, to join the military if the armed services determine that “such enlistment is vital to the national interest.
“The Executive Branch could use this discretion to allow qualifying childhood arrivals to join the military and access this path to citizenship,” Dussault writes.
Today, the only way that noncitizens may join the military is through the Military Accessions Vital to National Interest program (MAVNI), according to the report. The Department of Defense piloted the program in 2009. The program recruits can naturalize after completing at least 180 days of active duty service or at least one year of satisfactory service in the reserves.
Another discretion awarded to the Executive Branch by Congress is the ability to grant lawful permanent resident status to noncitizens in removal proceedings who meet certain requirements.
“There are several ways the Executive Branch could change how it administers cancellation of removal to make that path to permanent residence more accessible to childhood arrivals,” Dussaualt writes.
“The Executive Branch could allow childhood arrivals to initiate removal proceedings themselves for the sole purpose of seeking cancellation of removal, and guarantee that a rejection would not result in removal proceedings continuing.”
The DACA program, which the Obama Administration launched in August 2012, partially addressed this issue by letting eligible childhood arrivals stay and work in the country for two-year renewable increments.
But last year President Donald Trump rescinded DACA, citing the Attorney General’s conclusion that it was an unconstitutional exercise of authority by the Executive Branch.
However, Trump later stated that if Congress failed to legalize DACA within six months he would reconsider the issue.
“Neither DACA nor the DREAM Act offers a complete solution,” Dussault cautioned.
“Codifying DACA gives its recipients no legal status, and every iteration of the DREAM Act Congress has considered imposes requirements that disqualify many childhood arrivals.”
And she conceded that using executive powers to extend citizenship under DACA would only affect a limited number of people.
Even if the Executive Branch implemented every one of the proposals [I] identified, it would only help a relatively small number of childhood arrivals obtain citizenship,” Dussault wrote.
Ultimately, she wrote, Congress remains the key to DREAMers’ hopes.
“While that could certainly be meaningful for those impacted, the majority of childhood arrivals would remain without legal status and subject to deportation absent comprehensive Congressional action,” the paper said.
A copy of the paper can be downloaded here.
J. Gabriel Ware is a TCR news intern. Readers’ comments are welcome.