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Here’s why you shouldn’t call Obama’s executive action “legalization”

Many people have described the centerpiece of President Obama's executive actions on immigration as a "legalization" program, or said that it gives 4.3 million unauthorized immigrants in the US "legal status." This is wrong.

The deferred-action program for parents of US citizens and permanent residents, and the expansion of the existing DACA program for unauthorized immigrants who arrived as children, offer protection from deportation. But they do not change those immigrants' legal status (or rather, lack of legal status).

"Lawful status" is actually defined in immigration law — and it's defined to exclude DACA recipients, or future deferred-action beneficiaries as well. That matters, because there are other laws that govern, for example, whether someone without "lawful status" can get, say, in-state college tuition in a particular state. (DACA recipients do have "lawful presence," which isn't the same thing, and which is generally the standard for drivers' licenses.)

Furthermore, because deferred action doesn't give legal status, it can be reversed by the president at any time — which is why there's concern about what will happen to Obama's deferred action if a Republican wins in 2016.

This isn't just hair-splitting. There are two big, real problems with calling it a legalization program:

1) Calling it legalization enables notario fraud

Scammy notarios (people who claim to be immigration law professionals, but aren't actually lawyers) are a tremendous problem in America. One investigation in Chicago in 2013 found that 44 percent of a sample of immigration service providers were fraudulent.

Notarios flourish because there are a lot of immigrants out there (both authorized and not) desperate for legal help, and a lot of confusion about how immigration law actually works. And they're happy to take advantage of any rumor of a legalization program to get uninformed immigrants in the door.

This was a major problem when organizers were trying to get young unauthorized immigrants to sign up for the DACA program in 2012. When I asked Mario Hernandez, an organizer in Houston, what his biggest challenge was to educating the public about DACA, he told me it was notarios telling people to apply for the DREAM Act — permanent legal status — or, worse, helping them with their DACA paperwork but telling them it was for the DREAM Act. That puts the immigrants at risk of accidentally misrepresenting their status on a legal document — which is a federal crime and could get them deported.

"Deferred action" isn't as appealing a hook for notarios — and furthermore, an immigrant who knows what she applied for isn't at risk of accidentally committing fraud on a legal document later. But the more people talk about a new "legalization" program, the easier it is for notarios to tell immigrants they can get legal for only a few hundred (or thousand) dollars.

2) If it were legalization, it actually would be an executive power grab

Immigration law gives the executive branch a lot of authority to discretion over who to deport and who not to deport, given that the resources simply don't exist to deport everyone. But the executive can't create new forms of legal status — or get rid of existing ones. Only Congress can do that.

A future administration can undo the deferred action program, but couldn't reverse a true legalization program. That's because the first is something the executive branch can do: it can create it, or take it away. But the executive can't do that for legalization.

So if Obama had actually given immigrants legal status — something that couldn't be undone — it totally would have been the illegal, unconstitutional executive power grab that many Republicans are saying it is.