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Don’t Stop at DACA: Obama Should Use Pardon Power to Protect All Immigrants

Activists pushing President Obama to protect undocumented immigrants with DACA should not forget the millions of immigrants ineligible for DACA.

In less than three weeks, President-elect Donald Trump will have control of the executive branch, including the Department of Homeland Security (DHS) and the Department of Justice (DOJ), the implications of which will impact millions of immigrants — both undocumented and documented. DHS officials are charged with enforcement of immigration laws while the DOJ officials, such as the attorney general, are charged with regulating immigration law such as overseeing the immigration court system and even unilaterally modifying or even revoking decisions reached by the Board of Immigration Appeals (BIA).

It is without question a fact that a formidable resistance will have to be built in order to withstand four years, and quite possibly eight years, of unabashed xenophobia, which has the potential of materializing into very real consequences for immigrant communities. Under a Trump presidency, expect to see an uptick in workplace and home raids, increased collaboration between Immigration and Customs Enforcement (ICE) and local police, resulting in higher levels of deportations.

In response, several organizations within the immigrant community are developing strategies and tactics to push back on Trump’s anti-immigrant agenda, including disrupting immigration raids, developing immigrant defense teams and most notably creating a public find to provide legal counsel for immigrants in deportation proceedings.

In this resurgent wave of organizing, several elected officials have also called on President Obama to pardon immigrants with Deferred Action for Childhood Arrivals (DACA). The DACA program is an administrative policy under the Obama administration that provides temporary immigrant relief for undocumented immigrants brought the United States as children. As a result, DACA beneficiaries are granted work authorization, which then opens the door to government-issued IDs, access to higher education and the ability to travel outside the United States. Since the program’s inception, about 750,000 immigrants have been granted deferred action. During Trump’s campaign, Trump promised time and time again to end all executive actions take by President Obama. The termination of all executive actions including DACA has the potential of creating a politically volatile situation. Undocumented immigrants with DACA provide identifiable information to the federal government, such as home addresses and financial statements. It is not implausible for DACA beneficiaries to become targets of the Trump administration.

Under Article II, section 2, clause 1 of the Constitution, the president has the power to grant reprieve or pardon for offenses against the United States. The pardon power is irreversible — Congress and following administrations do not have the power to revoke any pardon granted. The pardon power is mostly known to be used on an individual basis, but there are historical examples of the pardon power being used on large groups of people. Abraham Lincoln exercised this power to pardon Confederate soldiers after the Civil War. In 1977, President Jimmy Carter pardoned thousands of conscientious objectors during the Vietnam War. There are also examples of pre-emptive pardons, such as the case of President Richard Nixon, which protected Nixon from any pending indictments. Although applying the pardon power to millions of people would be unprecedented, the president would have the legal authority, theoretically at least, to protect millions of immigrants from detention and deportation.

For many, DACA has created a moral crisis. Undocumented immigrants with DACA are viewed as hard-working, college educated young people that “give back to their communities.” In essence, immigrants with DACA are seen as “innocent” and unfairly targeted for immigration enforcement. White House officials have responded by claiming the president does not have the authority to pardon DACA beneficiaries, since immigration violations are seen as civil offenses and not criminal — a mostly false assertion. The Obama administration also argued that only Congress has the authority to create legal status for undocumented immigrants.

There is a deep sense of irony here. Activists and advocates pushing for the undocumented immigrants with DACA to be pardoned on the basis of perceived innocence are being rebuffed by the president for essentially the same reason — lack of criminal offense. Although the pardon power has the potential of being used more broadly, under the suggested parameters, the pardon power would be used on a narrow pool of immigrants, excluding those with criminal convictions. DHS reports an estimated 1.9 immigrants with criminal convictions in the United States — a group of immigrants left especially vulnerable after Trump’s vow to make their removal a priority during his tenure. By choosing to focus solely on the “deserving” immigrants, activists and advocates are creating a dangerous dichotomy that leaves millions of other immigrants vulnerable.

Right now, there is bipartisan effort to introduce legislation that would protect undocumented young people from deportation. While it may be tempting for DACA beneficiaries to accept such reformist terms, it would be behoove undocumented people with DACA to recognize the long-term implications of a proposal that protects one group of immigrants at the expense of millions of other immigrants, as well as to remember the ineffectiveness of similar strategies in the past. Now is not the time to capitulate to conservative proposals that sacrifice immigrants with criminal convictions. What President Obama does (or does not do) will undoubtedly set the tone for immigration under a Trump administration. President Obama has been pushed time and time again on his ability to protect immigrants. All immigrants deserve protection, regardless of contact with the criminal legal system. Thus, any proposed plan included those most vulnerable.

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