DAPA ‘nadapa’: Obama amnesty ruled unconstitutional

DAPA is the acronym for Deferred Action for Parental Accountability, an amnesty program aka “executive action” announced by President Obama on November 20, 2014 allowing parents of U.S. citizens and lawful permanent residents who have been illegally in the country since before January 1, 2010 to request deferred action from deportation. “Nadapa” in Tagalog means “fell flat on its face.”

 

On December 16, 2014, Judge Arthur J. Schwab, a U.S. district judge in Pennsylvania held that the program was unconstitutional. In his Memorandum Opinion Judge Schwab said: “This Executive Action ‘cross[es] the line,’ constitutes ‘legislation,’ and effectively changes the United States’ immigration policy. The President may only ‘take care that the laws be faithfully executed . . .’ he may not take any Executive Action that creates laws. U.S. Const., Art. II, Section 3.”  United States of America v. Juarez-Escobar, Criminal Case No. 14-0180, DC WD PA Doc. 32, filed 12/16/14. It appears that Judge Schwab not only swabbed the amnesty program, he deep throated it.

As we have been telling our radio listeners and writing in this publication and other publications, and as every alien applying for citizenship knows or ought to know, there are three branches of government—the executive, the legislative, and the judicial. The executive executes the laws, the legislative makes the laws, and the judicial interprets the laws. Granting amnesty is a legislative function. When President Obama granted amnesty, he performed a legislative function. As Judge Schwab said, he crossed the line.

Judge Schwab acknowledged that presidents and certain members of their administrative agencies may exercise “prosecutorial discretion” over certain criminal matters on a case by case basis and that in the field of immigration it applies to a broad range of discretionary enforcement decisions. President Obama invoked this discretion when he announced his “Executive Action”. However, the Judge said, Mr. Obama’s Executive Action goes beyond prosecutorial discretion because: “(a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case by case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.”

The Juarez-Escobar case involved an alien who was deported and reentered the U.S. illegally. In determining the sentence, Judge Schwab asked the parties to file supplemental briefing on how DAPA affected the defendant. The parties did not even raise DAPA as an issue.

This is the first judicial decision addressing DAPA. However, twenty four states, half of our country, led by Texas, have filed suit challenging Mr. Obama’s immigration “executive actions.” The 24 states are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, North Carolina, South Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, West Virginia, and Wisconsin.

The Texas-led case was filed in U.S. District Court in Brownsville, Texas. Texas v. United States of America. The court is presided by U.S. District Judge Andrew Hanen, an appointee of President George W. Bush. 

The first case challenging Mr. Obama’s “executive actions” was filed on the same day Mr. Obama announced them by Arizona sheriff Arapaio in U.S. District Court in Washington, D.C. It will be heard on December 22.

What now? The “executive actions” have not been stopped by the courts. Consequently aliens who qualify for the amnesty should immediately consult an attorney who has experience and knows what to do in order to file the necessary applications with the Department of Homeland Security.

Even though we have questioned the propriety and legality of amnesty, we have used it for the benefit of our clients. As we said in our previous column, a lawyer must use every weapon in the legal arsenal to fight the government who is deporting the lawyer’s clients, whether the lawyer likes the weapon or not.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to “The Tipon Report”, the wittiest, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to this article.)