Today, the Immigration Policy Center releases Using All the Tools in the Toolbox: How Past Administrations Have Used Executive Branch Authority in Immigration by Mary Giovagnoli, Esq. The paper examines the political battle over implementation of provisions of the Nicaraguan Adjustment and Central American Relief Act (NACARA) during the late 1990s.
It also looks at the role of executive branch authority during a key moment in the Bush Administration’s work on comprehensive immigration reform. Using the tools of executive branch authority, both the Clinton and Bush Administrations made the most of what the law had to offer, staying within the letter of the law, but opting for interpretations that reflected differing, but legally permissable, readings of the law. This lesson is worth recalling in the fight over prosecutorial discretion and administrative relief today.
The Department of Homeland Security’s (DHS) plan to review 300,000 immigration cases to assess whether they fall within the Administration’s enforcement priorities has already inflamed critics. Because the Administration may close some low priority cases in order to focus its limited resources on more serious cases, critics are immediately claiming this is an “amnesty.” But the DHS announcement is about using executive branch authority—in this case, prosecutorial discretion—to carry out its policy priorities.
The ability of whether the President can use discretion in the immigration arena has become the flavor of the month. The announcement by the DHS on August 18, 2001 under which 300,000 individuals who are low priority can hope to have their cases closed and obtain work authorization was welcomed. The details about how this policy will play out are nicely explained in a Legal Action Center advisory. Although many were pleasantly surprised by this policy, within days of the announcement even advocates for immigration reform have become skeptical about whether this policy will have a dramatic and far reaching impact. Obama supporters have even gone so far to accuse the Obama administration for mere window dressing in order to keep certain voters on his side in the next elections. Commentators such as Dan Kowalski also justifiably feel that ICE personnel will continue to ignore this policy, and choose not to exercise their discretion favorably.
While the President has his critics within the pro-immigration camp regarding his new announcement on discretion, the attempt by immigration restrictionists in Congress to blunt the June 17, 2011 Morton Memo on prosecutorial discretion when viewed in a larger context repeats an old pattern. For instance, Congressmen Lamar Smith (R-TX) and Senator Vitter have proposed a most unusual piece of legislation suitably called the HALT Act (Hinder the Administration’s Legalization Temptation Act) that will suspend all of the Administration’s discretionary relief until January 21, 2013, which is the day after the next Presidential inauguration.
Hilda Jauregui and dozens of women at an Orange County immigration detention center recently gathered to hear the news on television that the Obama administration will review thousands of deportation cases with an eye closing those considered "low-priority."
FOR THE RECORD:
Deportation order: An article in the Aug. 29 LATExtra section about the Obama administration's plans to review 300,000 deportation cases was missing the word "toward" in the first paragraph. The paragraph should have said: Hilda Jauregui and dozens of women at an Orange County immigration detention center recently gathered to hear the news on television that the Obama administration will review thousands of deportation cases with an eye toward closing those considered "low-priority." Also, an earlier version of this online article stated that the Jauregui family had ignored a deportation order issued more than 10 years ago. The family actually appealed the order.
"Everyone was shouting and hugging each other," Jauregui said in a telephone interview from the James A. Musick jail facility last week. "One woman said 'I'll qualify because I'm older,' another said she had children who were born in the country. Everyone was trying to find something positive that would make them qualify."
U.S. Homeland Security Sec. Janet Napolitano announced the review Aug. 18 as the administration was seeking to counter criticism that it has been too harsh in its deportation policies. The case-by-case review is intended to refocus efforts on felons and other public safety threats, officials said.
Now immigrants around the country are trying to find out how the review of nearly 300,000 deportation cases will actually work. The administration has said it would try to identify immigrants considered low-priority — including students, the elderly, victims of crime and people who have lived in the U.S. since childhood.
Jose Antonio Vargas came out of his first closet in high school when he told his classmates and family he was gay.
He came out of his second closet this summer, when he told the world he is an undocumented immigrant.
In his surprising, touching and much talked about New York Times essay, Vargas tells his story of being sent to America from the Philippines by his mother to live with his grandparents. Twelve-years-old when he arrived, it wasn't until he was 16 that he discovered he'd entered the country illegally.
Now 30, Vargas has built the kind of career a young reporter dreams of, much of it during his time at The Washington Post — covering the intersection of politics and technology in the 2008 presidential campaign; crafting a year-long series on AIDS in D.C. that was later adapted into the documentary The Other City; sharing a Pulitzer Prize with the Post team that covered the Virginia Tech massacre. During all that time, he was living with a secret that had the potential to end his career.
Reporting on himself — sifting through the history of his family and journey — hasn't been easy.
''I had to get it right,'' says Vargas. ''I only had one shot to tell this story and I had to tell it right, I had to be really accurate, or else people were just going to start picking holes in it.''
The story itself became a story when the news broke that The Washington Post had spiked the essay at the last minute. While the Times immediately picked up the piece, Washington's media class chewed over the question of why the Post had backed off. Slate media critic Jack Shafer dismissed Vargas's time in the immigration closet as a ''con.'' Post ombudsman Patrick Pexton wrote that Vargas had a reputation as ''a relentless self-promoter.'' Many others leapt to Vargas's defense, hailing his coming-out story as a watershed moment in the debate over immigration in America.
If there was ever any doubt that the only thing President Obama is truly gifted at is getting people to hope for change, we need look no further than his recent announcement to review the cases of up to 300,000 illegal immigrants facing deportation.
Too bad it's false hope.
Despite initial excitement of the immigrant advocacy organizations who are fighting for nothing less than a full 1980s-style amnesty -- and the correlated anger from conservatives who believe that last week's decision to re-evaluate the existing enforcement priorities is just that -- this is not a big step in immigration policy.
This latest Obama re-election campaign stunt won't affect 97 percent of the estimated 11 million illegal immigrants in our country. It is causing a lot of confusion within the very communities it is supposed to assuage, and it is further alienating those who must come to the negotiating table to hammer out a compromise for our immigration quagmire.
Arizona Gov. Jan Brewer chimed in quickly after the news broke, denouncing this plan as a "backdoor amnesty." She and others can be forgiven for initially thinking that. At first blush it sounded as though, at the very least, 300,000 lucky souls who were close to being deported had gotten a reprieve.
Many immigration experts and advocacy organizations are urging caution. They're scrambling to tell the immigrant community to not turn themselves in to authorities or try to get themselves detained for the purposes of becoming "legal." The possibility -- and it is just a possibility -- of getting a slate cleaned is open only to the 300,000 already in the pipeline for deportation. Each case will be reviewed by a panel and, if the case is closed, legal resident status will not be granted.
SAN DIEGO — The Department of Homeland Security has long said that its priority is to deport criminals and immigrants who pose a threat to national security. But enforcement of immigration laws has tightened beyond that guideline, with almost 80,000 non-criminal immigrants across the country deported since 2009.
New guidelines on "prosecutorial discretion" grant law-enforcement agents the ability to decide, on a case-by-case basis, whether an undocumented immigrant ought to be deported.
"The Administration is talking about cases that are pending in every immigration court around the country, not just the border regions," said Melissa Crow, director of the Legal Action Center at the American Immigration Council, a Washington-based nonprofit advocacy group.
"They're talking about cases at various stages of proceedings, and also on appeal to the federal courts. And also all different kinds of cases, definitely not just DREAM Act-eligible students."
Among other effects, the new rules would mean undocumented students could be allowed to stay and even apply for work permits. Military families, victims of crime, gay couples and others who pose no threat to public safety are also included. DHS says the move will prevent low-priority cases from continuing to clog the court system.
The implementation of a case by case review of at least 300,000 deportation proceedings, announced by the Department of Homeland Security last week, has left room for questions among immigrant advocate groups.
With this announcement, Homeland Security said it will implement prosecutorial discretion measures laid out in a June 2011 memo issued by John Morton, director of Immigration and Customs Enforcement (aka ICE).
Melissa Crowe, director of the Legal Action Center at the American Immigration Council, said on a conference call Monday, ”We are not sure how” Homeland Security’s commitment “will play out in practice” and what recourse individuals will have “if they believe their cases have been mischaracterized as high priority.”
Crowe added that in an ideal world, Homeland Security “officers throughout the country would stop issuing charging documents on low priority cases so they never enter the system to begin with.”
Mohammad Abdollahi of DREAM Activist writes in an email that “the decision from [Homeland Security] and Obama was nothing new, it pretty much just spelled out what they already had on the books.”
Last week’s announcement, based on the June 2011 memo issued by Morton, lays out a path to implement immigration law enforcement priorities put forward in a 2010 memo also issued by Morton that prioritized the detention and deportation of three groups: “aliens who pose a danger to national security or a risk to public safety,” “recent illegal entrants” and “aliens who are fugitives or otherwise obstruct immigration controls.”
It’s not just DREAMers that are getting a reprieve under the Obama administration’s revised deportation policies. When the Department of Homeland Security announced last week that in the coming months it will review its roughly 300,000 open deportation cases with the aim of closing low-priority cases, the agency indicated that for the purposes of deportation policy, it will recognize same-sex couples and families as real families.
The news means that queer families facing deportation may win the right to stay in the country under DHS criteria of who constitutes a high priority for removal. The guiding document for who merits the use of prosecutorial discretion is a June 17 memo written by Immigration and Customs Enforcement director John Morton. Morton advised ICE agents and attorneys to consider those who met any of the following characteristics were a low priority for deportation: those who were victims of crime, especially domestic violence or trafficking; those who are long-time lawful permanent residents; those with are veterans or active-duty military personnel and those with strong family ties in the U.S.
Under the Defense of Marriage Act, federal agencies are forbidden from recognizing the partnerships of same-sex couples, and that’s extended to the world of federal immigration policy. According to the American Immigration Council there are currently 36,000 bi-national same-sex couples in the country, and DOMA has provided the legal justification for the routine denial of same sex couple’s applications for permanent residence, and other immigration benefits like deportation relief, that straight couples are eligible for.
Sheriff Neil Warren, dubbed "Wild West Warren" by pro-immigration groups, has racked up nearly 15,000 immigration-related arrests in Cobb Country north of Atlanta. A new deportation policy announced Thursday by the Department of Homeland Security could mean that many of those arrested by Mr. Warren may not only get out of jail, but could go back to Cobb County with a legal work visa in hand.
Responding to criticism that the US deportation net has been cast too wide – sweeping up college kids, grandparents, and other noncriminal illegals – the Obama administration on Thursday formalized new rules that could mean release for many of the 300,000 people currently facing deportation in the US. Its goal will be to focus on deporting only the worst and most hardened criminals.
The move centers on prosecutorial discretion, with the Obama administration deciding whom it will and won't deport. Clearly, the shift has political ramifications, with Latino groups lauding the decision and conservative critics calling it a backdoor "administrative amnesty."
But perhaps more important to Main Street America is the question of how the new policy will affect police departments, primarily in the West and Southeast. Many of these departments have used federal programs as a means to arrest every illegal immigrant they come across. Now, the Department of Homeland Security's announcement introduces new uncertainty about whether many of those arrested will simply be sent back.
It is further proof that, until comprehensive immigration reform passes Congress, states and federal agencies will continue to nibble at the issue with different and often contradictory measures. In the meantime, the latest move makes for a "law enforcement nightmare," says the union that represents US Immigration and Customs Enforcement (ICE) personnel.
Gay and lesbian married bi-national couples like San Francisco’s Bradford Wells and Anthony John Makk may get some relief from the threat of deportation under the Defense of Marriage Act, thanks to action by the Obama administration today.
In a letter to Sen. Dick Durbin, D-Ill., Department of Homeland Security Secretary Janet Napolitano said a new working group will be established to identify low-priority cases for immigrant deportation. The administration will exercise prosecutorial discretion, widely practiced by all law enforcement officers, to identify which low-priority deportation cases to ignore. The policy is also posted on the White House website.
Napolitano cited a memorandum issued last June by Immigration and Customs Enforcement, or ICE, which contains a long list of mitigating factors to weigh in deciding whether to pursue deportation. These include whether the immigrant is married to a U.S. citizen, as Makk is, as well as whether the immigrant is the primary caregiver of a citizen, which Makk also is. Other factors include such things as length of lawful stay in the United States, criminal record and the like.
Sexual orientation is not specifically mentioned, but Mary Kenney, a senior staff attorney with the Legal Action Center arm of the Immigration Policy Center said the administration has indicated that same-sex marriages are included in the definition of family for the purposes of the enforcement memo. She called the move “very encouraging.”
Napolitano said President Obama asked her to respond on his behalf, having said that “it makes no sense to expend our enforcement resources on low-priority cases.” She said the June memo is now “being implemented.”
Wells and Makk have gotten huge media attention, including a spot on CNN, since the Chronicle’s second story on their case this month. You read about their case first in the Chronicle last June.