Democrats Push for Pardon of Undocumented Immigrant 'Dreamers'

Roberto Nunez was looking forward to landing a full time job after he graduates from UC Berkeley this semester. Now, he worries he'll lose his ability to support himself financially, and face a greater risk of deportation after President-elect Donald Trump takes office in January.

Nunez is one of more than 740,000 young undocumented immigrants who signed up for one of President Obama's signature policies, Deferred Action for Childhood Arrivals, known as DACA. Obama's executive action granted work permits and a temporary shield from deportation to undocumented teenagers and young adults who were brought to the United States as children and have lived here continuously since 2007.

DACA recipients are often known as Dreamers, for the DREAM Act, a Senate bill (introduced repeatedly from 2001 to 2012, but never enacted) that would have offered them a path to permanent legal residency.

As a candidate, Trump promised to rescind DACA, and has nominated immigration hardliners to key posts in his cabinet, including the Department of Homeland Security and the Department of Justice.

"We are no longer safe in this country," said Nunez, 21, who grew up in Ventura. "For me, it’s the fear of what’s going to happen. It’s so uncertain."

Trump has recently softened up his tone, promising in a Time magazine interview earlier this month, that his administration will "work something out" for Dreamers. But that's not reassuring to California Reps. Zoe Lofgren (D-San Jose) and Lucille Roybal-Allard (D-Downey), who are leading dozens of House Democrats in urging Obama to grant all DACA recipients presidential pardons -- for coming to the U.S. unlawfully.

While top administration officials have largely dismissed the idea, the members of Congress argue such a pardon is a "critical" action, consistent with the Constitution, that could open doors.

A pardon would not change the immigration status of DACA recipients, but it "could clear a path to a legal status that already exists under current law" for many of them, said a December 7 letter to Obama signed by the 64 lawmakers.

Lofgren has not received an official response from the White House.

"These kids trusted the president, they stepped forward after DACA was proclaimed. They provided their name, address, fingerprints," said Lofgren. "And now they are terribly exposed to an incoming president who says he is going to reverse all the executive actions Obama engaged in."

On Thursday, U.S. Attorney General Loretta Lynch told Politico that a blanket pardon was simply not doable.

"The issue of pardoning someone is an individual decision that's made in a case-by-case basis," said Lynch. "There's no legal framework or regulatory framework that allows the pardon of a group en masse."

Other legal experts disagree with Lynch's assessment.

Pardons have generally forgiven criminal offenses. This kind of pardon use  -- for civil immigration violations -- would be new but not unconstitutional, said Peter Markowitz, who teaches at the Cardozo School of Law in New York City.

"The Supreme Court has faced the question directly of whether the pardon power is limited to a criminal context and it has held that it is not so limited," said Markowitz. "Any offense against the United States can be pardoned, not simply criminal offenses."

Several former presidents have pardoned large groups of people at once, Markowitz added.

"Presidents like Washington, Madison, Lincoln and, most recently, Carter have issued broad categorical pardons sometimes that have impacted hundreds of thousands with the signing of one piece of paper," he said.

On his first day in office, in 1977, President Jimmy Carter pardoned an estimated half a million men who dodged the draft for the Vietnam War. That was an "incredibly controversial" decision for Carter at the time, said Julian Zelizer,  a presidential historian at Princeton University.

Zelizer agrees with other scholars that the chances are pretty slim that Obama will use his pardon power in such a sweeping way for DACA recipients. But given the massive policy changes expected to take place under the incoming Trump administration, Zelizer does not discount completely the last ditch request by House Democrats to Obama.

"If there was ever a moment for Hail Marys, this is it," said Zelizer. "I don't think the odds are great, but I can imagine him doing it. This is a president very much desperate to protect his legacy."