Obama's Immigration Policy On Hold — What's Next?

This is KPBS Midday Edition I Maureen Cavanaugh today was supposed to be the date that a program expanding action on deportation for millions of immigrants here illegally was supposed to go into effect. President Obama's executive action last year expanded the deferred action for childhood arrivals program , and instituted a deferred action for parents of Americans program but it is all on hold now due to a temporary injunction issued by a federal judge in Texas on Monday the judge's action was in connection with a lawsuit brought by 26 states against the president immigration programs. The White House says it will appeal the injunction. Joining me are Lilian Velasquez an immigration attorney here in San Diego and an adjutant professor at the California Western school of Law. Welcome to the program. Thank you very much. Dan Eaton a legal analyst with the firm seltzer Caplan McMahon and by tech here in San Diego. Welcome. Nice to see you. First Lily I will ask you for explanation about these expanded programs announced by President Obama. Who would be affected by the expanded DACA program and by the new DAPA? And the case of DACA two major changes from the original DACA and what they did was instead of freezing the age at 31 when the measure went into effect on June 15, 2012, now there is no agent you can be 35 years old as long as you have your high school diploma , have it here since January 15 to 2010 which is the second change. The old DACA is you actually recited here prior to June 15 of 2007 they added a couple of years so a lot of people will be able to qualify under the extended DACA. What about the DAPA? DAPA is similar to the benefit referred to the dreamers with the exception this is for parents who have US citizen children or children who are legal residents and if they meet the requirements primarily being they have resided continuously in the United States since January 15 or January went of 2010. There again we see that if the parents can qualify if they were here in 2010 it isn't the same thing for the expanded DACA. If an immigrant were accepted in either one of these programs what would they be allowed to do? The same thing the current DACA beneficiaries get which is a Social Security number and number one the ability to work. I have seen firsthand clients not coming for their extensions and they are transformed. We are working, they are earning, they are they are paying taxes, they are planning , going to college. It is wonderful to see that sort of thing happening from kids to before what they said I have no future what if I get arrested by the border patrol I am going to be removed. Now those fears are gone. And here they so protected that can be on the streets, go to work and get drivers licenses so the sky opened for them. However these are executive actions by President Obama they are not new laws and so the deferred action on deportation is only temporary isn't that way? It is. And that is the main concern that all of us have because client do you ask me what do you think? Do you think that DACA or DAPA eventually will become permanent residents? I don't think so. Congress needs to act for any one to be able to get a permanent green card that will allow them to live here indefinitely than that has to come from the Congress. This again is a little mandate , a temporary solution but we have to look at the larger picture. The big legal question being disputed is whether President Obama has the authority to change the way immigration law is being enforced to this extent. The White House says yes. To they have a legal argument? First, let's be clear technically the action was by Homeland Security Sec. J Johnson not the President of the United States but nonetheless your point is still well taken is about executive authority and the question comes down this is part of the broad discretionary power that the Sec. has to determine how to allocate resources for the purposes of prosecuting people violating immigration laws or whether this as you said a couple times quite correctly mooring whether it is new law that really only Congress should be able to make and if it's specific administrative action that did the administration do what it needed to do under a law called the administrative procedures act within public notice and a risk West for comments. They fully did not comply with the administrative procedure act which is what the judge issued the ruling he did on ironically enough Presidents' Day. As any president changed enforcement or had their agency director , instructed the agency director to change enforcement of federal law to this extent? Well of course the devil is in to this extent. All presidents decide how to allocate resources for the purposes of prosecuting crimes of any kind whether immigration or what have you but specifically immigration, yes, there have been some presidents from Ronald Reagan forward have taken specific actions with respect to declining to engage in deportation procedures with respect to certain classes. But this really may be unprecedented and the Department of Homeland Security's own website it suggests the size of this is really quite large and with respect to whether this is really new law or just discretionary authority, and so forth, the President himself announced that he was making new law and that is what got them into trouble with this particular judge. The White House continues to say though this is within the president's executive authority. Do you think looking at this they have a good legal argument? Well, I mean obviously the judge in Texas doesn't think so and there are two cites this. Remember there are 26 state representatives not quite accurate to say there 2016's because dates are only represented by certain officials but nonetheless there is a definite heated argument here and the question is whether the president even though he clearly has discretion to decide or the secretary decide how to allocate prosecution of immigration violations whether he went too far and made a new law because of Lily has said only Congress can really make the laws with respect to immigration. The question Edwards is whether this is despite a discretionary waive of enforcing the law or whether the president through his homeland security secretary advocating his obligation to follow the law which is the attention the judge in his 103 page opinion, which I did read, really focuses on. I believe you on the I know that you read these things. Dan, let me ask you this then, one of the things the legal arguments the White House is making is that the states representatives do not have standing to bring this lawsuit and is that because immigration is thoroughly within the federal purview? That's a big part of it to immigration is thoroughly within the federal purview also because like you can have people challenging the discretionary prosecutorial decision of the federal government. The states really don't have the say in immigration policy and that is widely accepted. The problem here is that this particular issue results in specific harm to the states says this particular judge and what does that mean? Turns out Texas heavily subsidizes drivers license to the tune of over $100 for each license issued and all that is needed is Texas's you be authorized to be here. If DAPA or the extended DACA gives you a right to stay here, there would be an argument they would have a right to driver's licenses and it would cost Texas tens of millions of dollars. At least Texas said this particular judge who has enough to have standing to make this argument and challenge these administrative actions. What you make of these legal arguments against the president's authority? I have been in practice for 33 years so immigration law is a strange animal. We don't look at it through logic, it has to do with policy and protection of our borders. The president and the Department of Homeland Security since two years ago decided that they were going to exercise prosecutorial discretion, people that were doing harm to society would be placed in removal proceedings. People that have a clean record other than the fact that they are in the country illegally, they would be allowed to stay and they did not want limited resources to go to the deportation proceedings of such individuals. There for, since they were allowed to stay here, and with no fear of being removed, why should be the next logical step? Give them a work permit so they can become productive members of society. It's interesting what Dan said, it's going to cost so much in driver's licenses. Will how much is the state going to get in revenues in job creation, in taxes paid by those individuals that would benefit under DACA or DAPA? I think it is really important to see the picture how many people would be allowed to stay and not be removed. It should happen to them? Are they still living in the shadow? Not really, they have the information. Let's empower them and make them productive. As I told you, tran07, the faces I see, the changes the changes I have seen tell me that even though I was skeptical about DACA it's not 50 -- a green card he does not lead to citizenship now that I see it has to say it has been successful. If the president had this is I think the naming of these programs is very significant because it is deferred action on deportation rather than saying that the people who are in these programs will never be deported because the one thing in theory the President can't do he can do for action on allocating prosecutorial resources on the other hand if he were to say we are not going to be deporting these people because they are let's make them good citizens, they can't -- he would be making new law if he were to do that, right? That's right, Maureen with the, what the judge said his opinion, look at that is the new prosecutorial discretion and all of the program is a check by number thing and if you fulfill all of these requirements you get to stay. The sounds an awful lot like law not prosecutorial discretion. If it were only about prosecutorial discretion on a case-by-case basis you could continue doing what you were doing for the last five years which is to apply, engage in prosecution of these particular categories of people this does more says the judge this confers a kind of lawful status the immigration and naturalization act says are deportable and that is lawmaking and that goes beyond the scope of the president's authority. Let's bring this down to California because in California there is the dream act. So is this expansion of these programs as important here as it would be somewhere else in the country? I think it is actually driven by the population of immigrants who live in a given state and California is number one and I think that this is where you see a lot of activity, all the marches, just -- demonstrations, lobbying, knocking on Congressman is because they are people that would be affected they are dreamers who parents may be deported and they are lobbying on their behalf. Please don't support my mom please don't support my dad and that would be US citizens children. And the fact that people -- US citizen children -- does not give them the right to stay they are still removable and the government has supported many, many families who had to take the US citizen children with them. I think California has a higher interest in what happens with this prosecutorial discretion. Unfortunately the dream act which was introduced by the Congress at least 11 times never made it. And so this is a consolation prize. Okay , guys we couldn't agree with Congress to pass immigration reform that would give a path to legalization and citizenship but I need to do something to help you. And this is the only thing I can do to help you. Is there any concern that a successful legal action against these expanded programs might undermine the original DACA? No that we are certain of this is what we are pitching to the community. Don't give up this is a bump in the road. We sort of expected it. We didn't expect it would happen on a holiday and the day before expanded DACA was going to go into effect but I mean it's such an important issue and there are so many expectations the right now there are a lot of people that are very disappointed. The good thing is we are telling the people that already have DACA do not worry. Besides I have already filed hundreds of extensions in the good thing is that they are not extending two years there given in three years I guess for if Obama leaves power and a Republican gets elected the kids have another year. When this injunction was ordered by this judge, a federal federal judge in Texas, I thought what he was saying is I am stopping this because not because of the merits of the lawsuit but because if this goes forward you can't take it back you can't unring the bell you can't put the genie back in the bottle is that what he said? Genie in the bottle toothpaste in the tube that was part of the argument that he also said the states are likely or at least Texas is likely to prevail on the merits this was done inappropriately and not in compliance with administrative procedure. They should've given public notice, you should've given a right to comment and that seems not to have been done. What he didn't do is he didn't make a definitive ruling on the merits but didn't decide the constitutionality under the take care to properly execute the laws under article Turko section three of the Constitution he didn't make a Merritt ruling as such but didn't decide the states have a likelihood of prevailing on the merits of this particular matter and that is why he stopped it. He said if I didn't stop it as you said the genie is out of the bottle the toothpaste out of the tube we can put it back and what happens if I don't grant this and it proves to be a muffled people are out of the shadows all of a sudden become deportable and the government has their information. The White House is going to be filing an appeal on this temporary injunction if the temporary injunction is lifted with the program immediately go into effect? That's interesting remember this was the day before the extension of DACA. DAPA is not scheduled to go into effect until this spring so the beat would continue to go on. We have to see what happens but presumably the President will put this into effect as soon as he possibly can. How long can these programs be blocked by injunction? Theoretically as Liliana and I were talking in the Green Bay could be three months but that's not going to happen everyone is aware of the attention they are going to be expedited appeals, expedited consideration. I think we're going to measure this in a matter of weeks or maybe a month or so at the outset. We are not going to talk about about -- continue to talk about this particular order in June or July. Okay. Thank you so much I've been speaking with turning Vasquez, immigration attorney adjunct professor with how was school the and Dan Eaton legal and used thank you so much. Thank you Maureen.