Two leading senators on Wednesday told the Obama administration to stop deporting illegal-immigrant students, saying they might soon be legalized by Congress so deporting them now is unfair.
The move provides a test for how far the Obama administration is willing to go unilaterally in halting deportations of illegal immigrants - and immigrant rights groups said they're watching how President Obama responds to the demand by Sens. Richard J. Durbin, Illinois Democrat, and Richard G. Lugar, Indiana Republican.
Mr. Durbin and Mr. Lugar asked Homeland Security Secretary Janet Napolitano to use what amounts to prosecutorial discretion and grant "deferred action" to illegal-immigrant students who would meet the criteria of a bill, known as the Dream Act, the two men have written to grant them eventual legal status.
"Though they are technically out of status, Dream Act students should not be removed from the United States," the senators wrote.
The senators said not many illegal-immigrant students are actually placed in deportation proceedings, but said the ad hoc nature of the decisions begs for a broad policy.
Clark Stevens, a spokesman for Homeland Security, said U.S. Immigration and Customs Enforcement already uses discretion on a case-by-case basis, but he said the issue underscores why Mr. Obama wants to see Congress pass a legalization bill.
"Cases like this illustrate the need for comprehensive immigration reform. We are focused on smart, effective immigration enforcement that focuses first on criminal aliens who pose a threat to our communities while we continue to work with Congress to enact reform," Mr. Stevens said.
Still, the senators' demand does raise questions about how much authority the administration could have to stop deporting most of the estimated 11 million illegal immigrants altogether if Congress is not able to pass a bill this year to legalize them.
Short of that, it still gives the president a chance to break with the enforcement efforts begun under President George W. Bush - many of which have continued under Mr. Obama's watch, deeply disappointing immigrant rights groups.
"This letter represents a huge challenge for the Obama administration," said Frank Sharry, executive director of America's Voice, a pro-immigration reform group.
But Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, called it ironic that two senators were telling the administration to ignore a law passed by Congress that calls for deportation of illegal immigrants.
"It is inappropriate for any member of Congress who swears to uphold the laws to ask that a law be disregarded. This request is like asking the secretary of transportation to halt all building of new roads and bridges because - someday - cars might fly," said Mr. Smith, Texas Republican.
The Dream Act has been introduced in Congress repeatedly but has never gained enough support for passage. It would apply to those brought here as illegal-immigrant children and would grant a path to citizenship to those who show they are working toward a college degree or have enlisted in the military.
Immigrant rights groups said the letter from Mr. Durbin and Mr. Lugar increases pressure on Mr. Obama to take action on his own. The groups also said it shows that bipartisan cooperation can happen on immigration, and said it was an encouraging sign for the chances of a broader legalization bill this year.
Mr. Obama on Tuesday, flying back from a California fundraising trip on Air Force One, called five Republican senators, including Mr. Lugar, to sound them out on their interest in working on an immigration bill.
Mr. Lugar told The Washington Times last month he would not be working with Democrats on writing a broad bill this year, and Sen. Lindsey Graham, the South Carolina Republican who has been working with Democrats on legislation, has sounded less optimistic in recent weeks.
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