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Official: Obama has 'prosecutorial discretion' to expand DACA to millions

WASHINGTON, DC - JULY 29: Citizenship and Immigration Services Director Leon Rodriguez testifies during a hearing before the House Judiciary Committee July 29, 2014 on Capitol Hill in Washington, DC. The committee held the hearing on 'Oversight of U.S. Citizenship and Immigration Services.' Alex Wong/Getty Images

A senior immigration official told the House on Tuesday that President Barack Obama has the discretion to grant amnesty and work authorization permits to millions of illegal immigrants, because the executive branch has broad discretion in how to implement laws passed by Congress.

Leon Rodriguez, director of U.S. Citizenship and Immigration Services, was asked by several House Republicans at Tuesday's Judiciary Committee hearing about whether it would be legal to expand Obama's Deferred Action for Childhood Arrivals program to millions of adults.

Citizenship and Immigration Services Director Leon Rodriguez told Congress Tuesday that President Barack Obama has the discretion to expand a controversial amnesty program to millions of illegal immigrants. Alex Wong/Getty Images

Rodriguez, who has been on the job for less than a month, said he believes it would be legal.

"It is my understanding… and it's something that's been acknowledged by scholars across the political spectrum, that yes, there is prosecutorial discretion which can be exercised in these sorts of situations," he said in response to a question from Rep. Ted Poe (R-Texas).

When Poe pressed Rodriguez if there is a limit to this discretion, Rodriguez replied that it's based on what the law allows. What Poe asked what the law allows, Rodriguez said it allows "pretty broad discretion."

Rodriguez also said he believes work authorization can be legally granted to anyone benefiting from an expansion of DACA.

"If the individual has a right, for example, through some sort of deferred action or parole or some other mechanism to be in the United States, then yes, those individuals can then be given employment authorization," he said. "In fact, it's often a good idea so that they're not in the shadow economy."

Rodriguez's answers fly in the face of arguments many Republicans have made that current law says no one in the country illegal can be allowed to work. The GOP has been making this point repeatedly over the last several days, after reports surfaced that Obama may be planning to apply DACA to five or six million illegal immigrants and allow some of them to work in the United States.

On Monday night, Sen. Jeff Sessions (R-Ala.) called on Congress to be firm in rejecting Obama's plan as a clear violation of the law.

"Mr. President, such actions would be wrong," Sessions said. "It would be an affront to the people of this country which they will never forget. It would be a permanent stain on your presidency. I urge you to make clear that you will not do this."

Rodriguez was pressed by several members about what Obama might be planning to announce on immigration at the end of the summer. But Rodriguez declined to answer and said only that plans are still being discussed.

"Let me be clear," he said. "No decisions have been made. The directive that we have received is to examine possibilities for different avenues to exercising that prosecutorial discretion.

"That process is ongoing, and no decisions have yet been made in that process."

Elsewhere in the hearing, Rodriguez said he believed that 714,000 people have benefited from deferred action on deportation under DACA over the last two years. That's much higher than the 580,000 he described in his written testimony, although he later said he wanted to check his numbers.

Judiciary Committee Chairman Bob Goodlatte (R-Va.) used the hearing to ask for clarification of how the USCIS implements DACA and the pending process of renewing DACA applications from illegal immigrants.

In particular, Goodlatte took issue with a recent statement that USCIS made about whether and how it verifies documents that are needed to show eligibility for the program. Goodlatte said USCIS has implied that it has the authority to verify documents, and "may" take steps to do so.

"This answer seems to put applicants on notice that USCIS in most case will not in fact verify the validity of documents submitted to satisfy eligibility requirements," Goodlatte said.

In reply, Rodriguez said USCIS "felt comfortable" saying "there would not be a specific attempt to authenticate particular documents," even though it could do so if needed.

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