#Not1More Deportation

Sí Se Puede DHS Rulemaking Petition & Lawsuit to Halt Deportations

Plaintiffs serve DHS on November 13, 2014.

The document below was filed with the Department of Homeland Security on February 4th, formally requesting an expansion of the deferred action for childhood arrivals (DACA) program to the fullest extent possible and a suspension of deportations.



What does executive action mean?

“Executive action” is action the President and other executive branch officials can take on their own, without Congress doing anything.

The executive branch is one of the three branches of our government. The other two are the legislative branch (Congress), and the judicial branch (the courts). The executive branch is made up of the President, his Cabinet members (like the Secretary of Homeland Security), executive departments led by Cabinet members (like the Department of Homeland Security) and administrative agencies, like the Environmental Protection Agency.

What are examples of executive actions the President could take to stop or reduce deportations?

The President can:

  • Grant relief from deportation and provide work authorization for millions by vastly expanding the Deferred Action for Childhood Arrivals program;
  • End the deportation dragnet by terminating the Secure Communities program and 287(g) agreements; these programs have enlisted local police to do the work of federal ICE agents. In addition to increased racial profiling, it has catalyzed the criminalization of immigrants and people of color.
  • Stop mass incarceration and criminalization of immigrant communities by ending Operation Streamline.
  • Prioritize enforcement by reducing deportations and revising the Morton Memos to stop classifying people as “high priority” based on immigration violations and minor criminal offenses, and by classifying as “low priority” any immigrants who would qualify for S744’s legalization program;
  • Reduce racial profiling and civil rights violations by cutting ties to local law enforcement agencies that engage in civil rights violations.
  • Stop creating new programs, like the Criminal Alien Removal Initiative pilot in New Orleans, Louisiana, in which immigration officials conduct biometric checks based on racial profiling. These actions have resulted in people with prior immigration records or minor criminal history being placed in deportation proceedings, breaking apart families and creating fear in the community.

Would executive actions like these help or hurt immigration reform legislation in Congress?

The best way to encourage immigration reform legislation is to advance principled immigration policies to the maximum extent permitted by law. Executive action would create real leverage with Congress, and it would jump start inevitable negotiations with House Republicans from a position of strength. It would also allow undocumented immigrants to participate actively in the immigration debate without fear of deportation.

For the past five years, President Obama has been involved in a failed effort to use administrative policy to advance legislative reform. By ramping up enforcement to unprecedented levels while providing lip service for legalization proposals, the Obama Administration has set up a “win-win” political dynamic, where it boasts of enforcement credentials when speaking to nativists while castigating Republicans when speaking to immigrant supporters. This strategy has been (1) inhumane and (2) an abject failure.

The success of the DACA policy is proof positive that temporary relief can simultaneously alleviate suffering, enliven engagement by those most affected, and positively advance the debate (despite claims of anti-immigrant republicans to the contrary).

How permanent would changes made through executive action be?

Anything done through executive action can be undone through subsequent executive action. As a legal matter, changes could be undone at any time by President Obama himself or any future president. But as a practical and political matter, once action has been taken, it’s hard to roll it back.

Has anything like this been done before?

Presidents both recently and throughout history have used executive action to provide relief from deportation. For example:

  • Presidents Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, and Clinton all granted parole and “deferred enforced departure” (a form of deferred action) to large groups based on nationality, including hundreds of thousands of Cubans and tens of thousands of Eastern Europeans;
  • In 2009, DHS granted deferred action to widows and children of deceased US citizens;
  • Since 2012, the Deferred Action for Childhood Arrivals program has provided deferred action and employment authorization to approximately 400,000 young people.

Have presidents taken similar executive action in areas besides immigration?

Yes. Both President Obama and previous presidents have used their discretion to suspend or de-prioritize enforcement of certain laws in many different areas.

  • President Reagan systematically under-enforced anti-trust laws, pursuing only a fraction of the cases brought by the Carter Administration for monopoly and civil restraint-of-trade.
  • President George W. Bush systematically under-enforced certain aspects of the enforcement work of the Environmental Protection Agency (EPA), the Food and Drug Administration, (FDA), and the Department of Labor (DOL). For example, during the Bush Administration, the FDA issued 50% fewer warning letters than previous administrations.
  • In August 2013, the Obama Administration directed federal prosecutors to change the way they charge individuals suspected of drug offenses in order to avoid the application of draconian mandatory minimum sentences;
  • In December 2013, President Obama announced that people whose health care plans had been canceled as a result of the Affordable Care Act would be exempt for one year from the requirement to purchase health care insurance (the “individual mandate”). The effect was to suspend enforcement of the individual mandate for this group of people, estimated to number between several hundred thousand and several million.

When would changes made by executive action on immigration take effect?

Any changes could be made effective upon announcement or as soon thereafter as practically feasible. For example, DACA was announced on June 15, 2012. ICE immediately began granting deferred action to eligible individuals in removal proceedings. Within 60 days, USCIS established a process for people to apply for DACA.

What is a rulemaking petition? How does it work?

Under the Administrative Procedure Act, any “interested person” has the right to ask an agency to issue a rule. 5 U.S.C. 553(e). The request is known as a petition. Rules include formal regulations as well as less formal policy memos. Any person or organization who would be affected by the proposed rule qualifies as an “interested person.” Agencies are legally required to give a reasoned response to the petition “within a reasonable time.” Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 540 (S.D.N.Y. 2009); 5 U.S.C. § 555(b).

How can I/we support the rulemaking petition or add my/ourselves on?

To add yourself or your organization to the rulemaking petition, fill out the form on this page with your contact information and your specific statement of interest of how you would be affected by a suspension of deportations. It asks you to describe how you/your organization would be affected by a suspension of deportations.

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Would you or your organization be affected by a suspension of deportations? Register your name and a statement of interest in the comment box and NDLON will compile all responses and submit them as a supplement to add all the interested individuals and organizations as petitioners.

By filling out the form, you are giving NDLON permission to
list you publicly as a signer on the petition.