President Obama has decried our immigration system as “broken.” In the absence of a legislative fix, he has promised to take executive action to provide some relief to undocumented immigrants. As an attorney who has been practicing immigration law in the greater Miami area for 15 years, I have 2 suggestions for executive action the president can take without stepping on the toes of the legislative branch.
Fix #1: Expand use of “Parole in Place.”
Contrary to popular belief, marriage to a U.S. citizen does not automatically result in a green card for the citizen’s foreign national spouse or stepchildren. Many are barred from applying for a green card while in the United States due to a provision that requires that they have been legally inspected and admitted when they entered the country. Many are also in the Catch-22 of not being able to leave the United States to be processed through the U.S. embassies in their countries due to a draconian 1996 law that locks people out of the United States for 3 or 10 years, depending on the length of their “unlawful presence” in the United States .
The DHS as a matter of routine paroles-in-place Cubans who arrive irregularly on U.S. soil. The parole positions them for green card status under “Cuban Adjustment Act.” Last year, U.S. Citizenship and Immigration Services (USCIS), a bureau of DHS, issued a memorandum recapitulating the legal theory behind “parole in place,” as well as streamlining the application process for certain individuals affiliated with the U.S. Armed Services and for their relatives. As per the November 15, 2013 memorandum, parole in place trumps the ordinary bars to permanent resident status for those who entered the U.S. without inspection.
Expanding the general use and frequency of “parole in place” to more foreign-born spouses, parents, and certain minor stepchildren of U.S. Citizens would position these relatives for green card status in the United States .
Fix #2: Follow the 6th Circuit on Temporary Protected Status (TPS).
There are several hundred thousand individuals who have been given a temporary reprieve from deportation due to strife or natural disasters in their countries, under a law called “Temporary Protected Status” (TPS). These individuals remain mired in immigration limbo, never knowing whether their country's designation will finally end. Many have U.S. citizen spouses, or adult U.S. citizen sons or daughters, but cannot apply for a green card due to having entered the United States without inspection.
Last year in the case of Flores v. USCIS the Court of Appeals for the 6th Circuit held that the grant of TPS to an individual who entered the U.S. without inspection constituted a legal inspection and admission into the United States . Under Flores , such an individual could apply for permanent resident status through certain U.S. citizen relatives notwithstanding his entry without inspection. Unfortunately, the USCIS has not adopted the 6th Circuit's holding nationwide; it remains binding on only within Michigan , Ohio, Tennessee , and Kentucky . Adopting Flores nationwide would provide legal cover for some TPS holders who entered without inspection to pursue permanent resident status through a U.S. Citizen relative.
The measures I suggest are not panaceas, nor are they the entire set of tools at the president's disposal with which to tweak our immigration system. The President's authority is not unfettered, however I hope that my examples of potential executive action fixes illustrate that, when it comes to implementing immigration reform, the President’s hands are far from tied.
Cohen is a member of the American Immigration Lawyers Association and the Florida Bar, with offices in Hallandale Beach and Fort Myers , Florida.