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Administrative Immigration Reform Delayed by President Obama

On March 13, 2014, President Obama called for a review of the Department of Homeland Security’s (DHS) enforcement practices. However, this week he announced that he would delay this effort until summer’s end if Congress does not pass legislation in the remaining few legislative sessions before then. Hoping to extend an olive branch to the more restrictionist GOP House members, the President is hoping to give them a window of opportunity to take up immigration reform legislation in the coming weeks.

Almost a year ago, the United States Senate passed an immigration reform bill, S.744. But, the House of Representatives has never brought a reform bill for a vote on the floor. This is due in part to a deeply divided Republican party, where a minority of anti-reform representatives is holding the issue hostage in no small part because of mid-term elections. Most of these anti-reform Republicans are from gerrymandered, mostly white districts who hope to be re-elected or to elect more Tea Party favorites whose mantra is to oppose immigration benefits and to increase enforcement.

President Obama is caught in the middle, however. He has failed to satisfy immigrant advocates by his inaction in reviewing and humanizing deportation policies and improving immigration benefits adjudication trends. Yet, by merely suggesting he would review the policies, the Republicans have used their frequently used excuse to do oppose anything the President does by declaring him untrustworthy in implementing the law. Nonetheless, every day that goes by when Congress does not act on immigration reform, more families are being torn apart under a broken immigration system; businesses cannot hire the workers they need; and DHS will detain and deport another 1,000 people a day–many of whom could apply for legal status if reform is enacted.

Only Congress can control the categories of immigration and the numbers, the grounds for removal and the funding of the agencies involved. However, the President, through his executive authority, may act to prioritize enforcement, and to amend or change regulations that are consistent with existing statute. Even a change of policy or procedure must be consistent with statute, but there is often room for interpretation, adjustment for procedures and discretion to prioritize activities within the budget given. Thus, there are three main areas where the President could use his executive authority via the implementing agencies (e.g., US Department of Homeland Security and/or US Department of State): enforcement reform, affirmative relief from deportation, and immigration adjudications.

The American Immigration Lawyers Association and other immigration advocates are asking for these administrative reforms:

DHS is removing thousands of people each year who pose no threat and have strong ties to our country, including many with U.S. citizen and lawful permanent resident family members. More than 40 percent of those removed do not have any criminal conviction; many are deported solely for committing immigration status violations. Furthermore, fewer than 30 percent of removals occur in immigration court; the rest are deported without basic due process. See Misplaced Priorities: Most Immigrants Deported by ICE in 2013 Were a Threat to No One. Prosecutorial discretion should be exercised more robustly, and every case, including border zone apprehensions, should be screened for family ties and other equities. Both detainer practices and the skyrocketing use of federal immigration detention should be dramatically curtailed in favor of constitutionally sound, humane and less-costly alternatives. DHS must increase accountability and transparency, especially over enforcement and deportations in the exceedingly wide region where Customs and Border Protection operates.

Affirmative relief from deportation: DHS should use its legal authority to designate categories of people for whom it will provide temporary affirmative relief from enforcement action, as it did in 2012 with Deferred Action for Childhood Arrivals (DACA). The use of deferred action or parole in place would be appropriate for: 1) the close family of U.S. citizens, lawful permanent residents, and recipients of Deferred Action for Childhood Arrivals (DACA); 2) individuals who have long resided in the United States or have other strong community ties; and 3) certain lawful permanent residents who are subject to removal.

Immigration adjudications: U.S. Citizenship and Immigration Services too often adopts the most miserly interpretation, resulting in unnecessary delays or denials of valid family and business petitions. This approach has hurt business development and growth and kept apart families who are petitioning for reunification. DHS needs to restore the more balanced interpretation of the law historically applied that will help businesses, families and our economy.