Imagine. The argument over President Barack Obama’s legal authority
to defer deportations begins 42 years ago with a bit of hashish, a
dogged lawyer and, yes, John Lennon and Yoko Ono.
President Richard Nixon was seeking re-election, American Pie was
leading the pop charts and Lennon was in New York facing deportation
from a Nixon administration eager to disrupt the famous ex-Beatle’s
planned concert tour and voter registration drive. The case hinged on
Lennon’s 1968 conviction for possession of “cannabis resin” in London.
Lennon was eager to at least delay his deportation so Ono could fight
for custody of her nine-year-old daughter by a previous husband. Lennon
and Ono approached Leon Wildes, a lawyer young enough that he shouldn’t
have had to ask a colleague, “Who is John Lennon?” He had grown up in a
small town in Pennsylvania coal country, and “I was not into that kind
of music,” he says.
But he knew his immigration law.
In time, the effort to extend Lennon’s stay in the United States
would become an integral part of the legal foundation the Obama
administration relied on in 2012 to set up a program that has deferred
the deportation of more than 580,000 immigrants who entered the country illegally as children.
“All I can say is, John Lennon is smiling in his grave,” Wildes said in an interview. “He helped accomplish that.”
The extent of Obama’s legal authority is now central to the White
House deliberations over what else Obama can do – and when – without
congressional action to reduce deportations and give many of the 11 million immigrants illegally in the United States the ability to stay and work without fear of being removed.
Until the Lennon case, the Immigration and Naturalization Service had
not acknowledged it used its own discretion in deciding whom to deport.
But through the Freedom of Information Act, Wildes discovered 1,843
instances in which the INS had invoked such prosecutorial discretion as
part of a secret program for “non-priority” cases.
Once the program was revealed, the INS had no choice but to concede
its existence and issued official guidance on how it would be applied.
“The remarkable work of Leon Wildes really led to the old agency of
INS making its policy about prosecutorial discretion and non-priority
status public for the first time,” said Shoba Sivaprasad Wadhia, a law
professor at The Pennsylvania State University Dickinson School of Law
who has written extensively about executive powers in immigration law.
Immigration lawyers and many legal scholars like Wadhia argue Obama
draws his authority to act from a broad range of sources, from the
Constitution to immigration laws to government regulations.
Critics like John Yoo and Robert Delahunty, both of whom worked in
the Justice Department’s Office of Legal Counsel during President George
W Bush’s administration, argue that the president doesn’t have such
broad latitude and that prosecutorial discretion can only be applied
narrowly.
For Wildes, now 81 years old and still at work on immigration cases,
the years spent with John & Yoko were a defining time. (The “hold”
music on his office phone plays Lennon’s Imagine.)
Like a good lawyer, he tried a variety of ways to lengthen Lennon’s stay.
He even attempted a novel approach. The law said convictions for
possession of “narcotic drugs or marijuana” were grounds for
deportation. Wildes asked Lennon whether cannabis resin, also known as
hashish, was marijuana. “Oh, no,” Wildes recalled Lennon replying. “Much
better than marijuana.” Wildes presented expert testimony that hashish
was not marijuana and thus was not covered by the law. “While this
argument has some technical appeal”, the Board of Immigration Appeals
concluded, “we are not persuaded.”
In the end, Lennon won by obtaining a “non-priority” classification.
“That discretion exists,” Wildes said. “Any agency which is so huge
has to be concerned how they spend their money and what they concentrate
on and they shouldn’t be deporting people who are here for 25 years and
never did anything really wrong.
“So that is the message that we got from representing John Lennon.”
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