‘Unconstitutional’: Biden’s ‘Amnesty’ Executive Order Poised For Slew Of Legal Challenges 

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Jason Hopkins Immigration Reporter
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President Joe Biden announced an executive order Tuesday that could effectively provide amnesty to well over 500,000 illegal immigrants in the United States — but the move may not pass legal muster.

Speaking Tuesday at a White House event commemorating the 12-year anniversary of the Deferred Action for Childhood Arrivals (DACA) policy, Biden unveiled his own executive order laying out a plan to give deportation protection, work permits and a pathway to legal status to hundreds of thousands of illegal immigrant spouses. Those eligible must have lived in the U.S. for at least 10 years, be legally married to a U.S. citizen and be ultimately approved by the Department of Homeland Security (DHS). (RELATED: Majority Of Hispanics Favor Deporting ‘All’ Illegal Immigrants: POLL)

The illegal immigrants approved under the order will have three years to apply for permanent residency, allowing them to remain in the U.S. and gain work authorization.

But like DACA, the action is set to face legal challenges from conservative groups and immigration hawks, who say the executive order is unconstitutional and inappropriately interprets its underlying statute.

An attorney for the Immigration Reform Law Institute told the Daily Caller News Foundation that they are currently identifying legal challenges, and America First Legal – a conservative legal organization headed by former Trump adviser Stephen Miller – on Tuesday pledged legal action against the order.

“This is nothing but an attempt to create an amnesty by abuse of the parole authority,” Matt O’Brien, director of investigations for the Immigration Reform Law Institute (IRLI) and a former immigration judge, told the DCNF.

The maneuver the Biden administration is using to grant this mass amnesty is an authority known as “parole-in-place.” The president will use parole-in-place to remove obstacles in U.S. law that prevents noncitizen spouses who entered the country illegally from obtaining green cards without leaving the country, offering them a pathway to permanent legal status.

Under current law, an illegal immigrant can apply for legal status after they have married a U.S. citizen, but they are required to leave the country in order to move forward with the process. Under Biden’s expansion of parole-in-place, those noncitizens will be allowed to wait out the application process while remaining in the country.

Migrants of different nationalities pray in front of anti-riot agents of the Texas National Guard who prevent passage towards their border line, as seen from Ciudad Juarez, state of Chihuahua, Mexico, on April 16, 2024. (Photo by Herika Martinez / AFP) (Photo by HERIKA MARTINEZ/AFP via Getty Images)

However, many immigration hawks say this move is blatantly unconstitutional. The order, they say, usurps congressional authority by using a maneuver that is intended to be extremely limited in scope and applying it to a massive group of individuals.

While immigration law gives the executive branch discretion to grant parole on a case-by-case basis, experts say the Biden administration is abusing the law by granting mass parole to over half a million people.

“Parole is intended to be very narrow, allowing inadmissible aliens to enter on a temporary and case-by-case basis only,” Joey Chester, communications manager for the Federation for American Immigration Reform, said in a statement to the DCNF, stressing that the “politically motivated” order is a violation of immigration law.

“Parole-in-place has no basis in law and rewards those who broke U.S. immigration law. These illegal aliens will get work permits, green cards, and a path to citizenship – sending a message around the world that if you cross our borders illegally and stay here long enough, you will eventually get amnesty,” Chester continued.

Chester was not the only critic to argue that the order would incentivize more illegal immigration.

“Rather than stopping the worst border crisis in history, President Biden has overreached his executive authority to use an unconstitutional process, circumventing voters and their elected representatives in Congress, to send a message that amnesty is available to those who enter illegally into the United States,” James Massa, CEO of NumbersUSA, said in a statement.

“The action is unconstitutional. The timing is unconscionable,” Massa added.

Parole-in-place began in the Reagan administration when Congress amended the Immigration and Nationality Acts (INA) to allow paroled noncitizens living in the U.S. legally to apply for green cards, O’Brien told the DCNF. However, federal immigration authorities under the Clinton administration concluded it could also grant parole to illegal immigrants.

A Mexican migration official checks the papers of asylum seekers at the El Chaparral crossing port before they attend their appointment with US authorities at the US-Mexico border in Tijuana, Baja California State, Mexico, on June 5, 2024. President Joe Biden said Tuesday he had ordered sweeping new migrant curbs to "gain control" of the US-Mexico border, making a dramatic bid to neutralize one of his political weak spots in his reelection battle against Donald Trump. (Photo by GUILLERMO ARIAS/AFP via Getty Images)

A Mexican migration official checks the papers of asylum seekers at the El Chaparral crossing port before they attend their appointment with US authorities at the US-Mexico border in Tijuana, Baja California State, Mexico, on June 5, 2024. (Photo by GUILLERMO ARIAS/AFP via Getty Images)

“Neither advance parole (allowing aliens with no status to re-enter the US after travel) nor parole-in-place have any basis in statute,” O’Brien said to the DCNF. “The INA requires, with limited exceptions, anyone who seeks a green card to enter the U.S. lawfully and maintain lawful status until a green card is granted.”

Biden on Tuesday also announced he will be speeding up work visas for DACA recipients and other “Dreamers” who have earned a degree from a U.S. institution and received a job offer from a U.S. employer in a field related to their degree.

The mass amnesty plan comes two weeks after Biden’s executive order ostensibly cracking down on illegal immigration at the U.S.-Mexico border. That order – which was panned by both immigration hawks and advocates alike – temporarily suspends the illegal entry of noncitizens across the southern border once the number of average border encounters exceeds 2,500 a day over a week-long time period. (RELATED: Illegal Immigrant ‘Gotaways’ Near Two Million Under Biden Admin)

Biden faces a close re-election battle with former President Donald Trump, as well as incredibly low approval ratings on his handling of the immigration crisis. The U.S. has seen over 7 million illegal crossings along the southern border during his time in office, according to the latest Customs and Border Protection data.

The current border crisis ignited after Biden, following through on campaign promises, immediately embarked on an agenda to erase Trump’s immigration legacy when he took office in 2021.

In the first year of his presidency, Biden took 296 executive actions on immigration, according to an analysis by the Migration Policy Institute. Of these executive actions, 89 specifically reversed or began the process of undoing policies undertaken by the Trump administration.

Biden has since undone major initiatives launched by his predecessor, such as ending border wall construction, shuttering the Remain in Mexico program and ending the COVID-era Title 42 health order that quickly expelled migrants.

The White House did not immediately respond to a request for comment from the DCNF.

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