On November 20, 2014, in a primetime national address, President Obama ended months of speculation and made good on multiple promises to take action regarding U.S. immigration policy. The President emphasized that the new initiatives, policies, and programs he was announcing are not a permanent solution to the many problems plaguing our current immigration system and laws. But because Congress has thus far failed to pass comprehensive immigration reform legislation, he took some executive actions to make what incremental improvements he could. While many noncitizens and advocates cheered the President’s announcements as progressive triumphs, opponents have condemned the moves as illegal and unconstitutional. The truth lies somewhere in between.
The most commented on, and perhaps most divisive, announcement was the creation of a new deferred action program for certain parents of U.S. citizen (USC) or lawful permanent resident (LPR) children. Referred to as the Deferred Action for Parental Accountability (DAPA) program, or alternatively Deferred Action for Parents of Americans and Lawful Permanent Residents (also DAPA), it will grant deferred action to:
- individuals who already had a USC or LPR child(ren) on November 20;
- who have been present in the U.S. since at least January 1, 2010;
- who are without lawful immigration status as of November 20; and
- who pass security and criminal background checks.
While deferred action does not give an individual lawful status in the U.S. or put her on the path to lawful permanent residency (a “green card”) or U.S. citizenship, it does provide temporary protection from removal (“deportation”) from the U.S., providing a measure of at least temporary security to those who qualify and ensuring that they will be able to remain with their lawfully present children. Deferred action also provides eligibility for employment authorization during the deferred action period, allowing those individuals to work legally so as to better support their families. Individuals eligible under this program will be placed in deferred action for a period of three years.
Similarly, President Obama also announced the expansion of the Deferred Action for Childhood Arrivals (DACA) program, first created in 2012. The expansion impacts:
- individuals who entered the United States before their 16th birthday;
- who have been present in the U.S. since at least January 1, 2010;
- who are attending school, have graduated, or have been honorably discharged from the U.S. Armed Forces;
- and who have not been convicted of certain crimes or pose a threat to national security or public safety.
Once the new program changes go into effect in early 2015, those individuals will also qualify for deferred action and receive three-year work permits. By extending DACA eligibility to individuals present since January 1, 2010, instead of the previous cutoff date of June 15, 2007, and removing the prior age cap restricting eligibility to people under the age of 31, Obama is providing the same protection from removal and employment authorization eligibility to a greater number of young noncitizens, many of whom were brought to the U.S. at a young age and consider themselves “Americans” in all but name.
It is estimated that as many as 3.7 million undocumented individuals may benefit from DAPA, and that almost 300,000 additional people could be eligible under the expanded DACA provisions, meaning that as many as 5.2 million people could benefit from these new initiatives – nearly half of the estimated 11-12 million undocumented population.
But reactions to these programs have been mixed. Many of the noncitizens who will qualify for DAPA are excited and grateful for the opportunity to, as the President has said, “get right with the law,” and immigrant advocates welcomed the announcements while acknowledging their limitations. They provide respite from the daily fear of deportation felt by those who would gladly regularize their immigration status if only they were eligible to do so, and will surely help keep family members together. On the other hand, many individuals will not qualify, as is inevitable whenever arbitrary lines are drawn, leading some to feel frustrated and confused. Others are apprehensive about identifying themselves to government authorities when it is far from clear what will happen once Obama leaves office – will applying for deferred action simply paint a target on one’s back, making removal that much easier if (or when?) the programs eventually end? Moreover, deferred action is temporary and does not lead to LPR status or citizenship, leading some to criticize the administration for not doing more; Obama has countered, rightly, that only Congress can grant LPR status or citizenship, underscoring again the need for reform legislation. Despite critics’ protestations, this is not a mass “amnesty” or “legalization.”
While DAPA and DACA have received the most media attention in recent weeks, a flurry of other Department of Homeland Security (DHS) memoranda were also released on November 20, announcing many other changes to U.S. immigration policy. In the coming months, DHS will implement its new Southern Border and Approaches Campaign Strategy to more effectively secure the U.S. borders and ports of entry. Immigration and Customs Enforcement (ICE) will discontinue its controversial enforcement program, Secure Communities, under which state and local law enforcement agencies send the fingerprints of anyone they arrest to DHS. It will be replaced by the new Priority Enforcement Program (PEP), under which ICE will simply request that such agencies notify ICE of such individuals’ pending release, rather than requesting their continued detention. Additionally, fingerprint data from state and local law enforcement will still be shared with ICE, but ICE will only seek custody of individuals who fall into certain newly adjusted enforcement priority categories.
To that end, DHS released another memo detailing its department-wide changes to enforcement and removal priorities, creating three categories of civil immigration enforcement. The highest priority, “Priority 1,” encompasses noncitizens who are threats to national security, border security, and public safety, such as terrorists, gang members, felons, and those apprehended at the border or ports of entry while attempting to unlawfully enter the U.S. “Priority 2” covers misdemeanants and new immigration violators, including noncitizens attempting to enter or re-enter the U.S. unlawfully who cannot demonstrate continuous physical presence in the U.S. since at least January 1, 2014. The lowest priority, “Priority 3,” are those who have been issued a final order of removal on or after January 1, 2014, whom DHS states should be removed from the U.S. unless they qualify for some form of immigration relief and/or can otherwise demonstrate that they should not be an enforcement priority. DHS resources are directed to be allocated in accordance with these enforcement priorities.
Other DHS memos extend provisional waivers of unlawful presence for certain immigrant visa applicants to spouses and minor children of LPRs and adult sons and daughters of USCs and LPRs; expand parole-in-place and deferred action availability to certain family members of those seeking to enlist in the U.S. Armed Forces; enhance policies to bring foreign entrepreneurs and highly skilled workers to the U.S.; and adjust DHS policy regarding advance parole to match recent Board of Immigration Appeals precedent.
Although these policy changes and programs lie squarely within the administrative powers of the presidency, many Republicans have decried the administration’s actions, accusing President Obama of outrageous abuses of power. House Speaker John Boehner had previously warned that any chance of Congress passing immigration reform legislation would die if the President acted on his own, and a group of 17 mostly conservative states have sued the administration over the executive orders. The Republican-led House of Representatives has held multiple hearings on what they call President Obama’s “overreach” and “amnesty,” and last week even voted to pass a symbolic bill blocking these executive actions.
However, all U.S. presidents have issued executive orders, and many, including Republicans, have taken executive action on immigration in the past. Shortly after the President’s announcements last month, a coalition of immigration law professors wrote a letter confirming the legality of these actions as “legal exercises of prosecutorial discretion,” which, as the professors point out, “is a long-accepted legal practice in practically every law enforcement context, unavoidable whenever the appropriated resources do not permit 100 percent enforcement.” A few days later, a group of former General Counsels of the former Immigration and Naturalization Service (INS) and Chief Counsels of U.S. Citizenship and Immigration Services (USCIS) sent another letter to Republican Congressional leaders, stating that they “agree wholeheartedly with [the law professors’] legal analysis and conclusions.” The political reaction to these announcements, while perhaps not surprising, is notably more aggressive than the responses to past presidents’ executive actions on immigration.
In the end, these actions are neither the panacea that many undocumented people and advocates had hoped for, nor the unconstitutional power grab that opponents have denounced. While they will undoubtedly help many people and keep millions of families together, they are still just a temporary, imperfect stopgap solution to a problem that only Congress can fix, by passing truly comprehensive legislation that overhauls our broken immigration system once and for all.