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Was Obama’s move on immigration legal? Lawyers' memo makes the case

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The Department of Homeland Security estimates that this change would affect 800,000 people.

The immigration lawyers’ memo argues that expressing discretion about who gets prosecuted under federal law is in fact common across the US; that once prosecuting objectives are set, the executive branch has the authority to grant “deferred action” under a wide array of circumstances; and finally that prior administrations have used a variety of provisions to achieve similar policy objectives.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said DHS Secretary Janet Napolitano in a statement accompanying the president’s decision. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

Choosing whom to prosecute is something immigration officials and police departments do all over the United States every day, the memo argues.

As such, directing that judgment “is not contrary to current law,” the memo reads, “but rather a matter of the extension and application of current law to contemporary national needs, values and priorities.”

This piece of the argument is particularly important to fend off criticism that DHS has decided to stop enforcing the nation’s deportation laws – they’re being enforced, the president’s backers can argue, but the authorities are focusing on criminals and other more important cases first.

Next, the memo posits that DHS already allows certain individuals to stay in the US under a designation known as deferred action that has few restrictions: It’s currently outlined as a process driven by “the discretion of the agency or at the request of the alien, rather than an application process.”

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