The question has been posed whether President Obama really has done everything legally possible to put an end to the destruction of hundreds of thousands of families through deportation. I, and many others, do not believe that he and his party have the political will to address comprehensive reform in a meaningful way. Not in his first term. Not in his second term. Not ever.
So let's take a look at what the President has done to stem the tide of his 400,000 deportations per year mandate.
The Obama administration has reviewed approximately 150,000 pending deportation cases, moving to administratively close 1,500 of them through a favorable exercise of prosecutorial discretion. Not good odds, as the amount of individuals benefiting from prosecutorial discretion is insignificant in consideration of the amount of pending deportation cases reviewed.
The administration has also proposed a new policy that will permit the pre-adjudication of hardship waivers for individuals that are statutorily ineligible to adjustment of status due to the manner of their admission (i.e., they were not inspected and admitted a/k/a they "snuck into the country"). Of course this proposed policy won't go into effect until after the election, and is transparently being offered as a political carrot. In reality it may be all stick.
I say this because the waiver process is tumultuous, and submission of an application should in no way be interpreted as a guarantee that a waiver will ever be issued. Even if a waiver is granted the individual will be required to incur great expense to leave the country simply in the exercise of tagging up in their home country for visa issuance. Moreover, if an individual submits themselves to the pre-adjudication waiver process, and the waiver is denied, the inevitable result will be the institution of removal proceedings.
I'm not willing to predict what percentage of waivers will ultimately be favorable adjudicated. That being said, the percentages of people benefiting from the prosecutorial discretion memo are between 1-6% depending on who you ask. All I know is that unless I have a client who has already had removal proceedings instituted against them it will be a hard sell to convince them to risk everything by exposing themselves to the potential liability of a denied waiver, coupled with the harsh slap of the institution of deportation proceedings. The whip is simply much, much bigger than the carrot.
Point being, there are alternatives that have not been considered by the Administration that in certain circumstances will negate the requirement of a waiver and the need of the individual ever departing the United States.
Specifically, humanitarian parole, or parole in place. President Obama has the authority to confer parole status on an individual that would render them eligible to adjust their status inside the United States. This would eliminate the need for a waiver, which in most cases is required to cure either a three or ten year bar that is triggered upon departure due to unlawful presence inside the country.
Parole could be granted on a case by case basis to individuals who are immediate relatives of United States citizens, and who are able to establish hardship to their relatives if they are deported. The hardship would not have to be extreme in nature, which has been defined as more than the pain that stems from separation, and which is less than what is required for the approval of the waiver.
This option could be made available only to individuals with no criminal record, have established good moral character, and who are only ineligible for adjustment because they were not inspected and admitted.
So the bottom line is that there are other options available to this President that are much better alternatives to what has been offered, and the options could be implemented IMMEDIATELY.
If this President is serious about making good on his previously broken promise to stop the flow of deportations this would be a seriously big step in the right direction.
And by the way, I don't want to have to wait until after the election, which is half a year away.
Start issuing paroles this summer Mr. President.
Don't make us wait for your second term to break another promise.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).