Should We Trust Him? The Mixed Results of Obama’s Past Immigrant Relief Measures

Past executive actions for undocumented immigrants under the president’s administration haven’t always delivered.

Yana Kunichoff

(Calvin Fleming / Flickr)

In a prime-time address shunt­ed by major net­works but watched breath­less­ly by immi­gra­tion activists around the coun­try, Pres­i­dent Oba­ma announced a series of exec­u­tive actions his admin­is­tra­tion will under­take to change the nation’s immi­gra­tion sys­tem, rang­ing from increas­ing invest­ment in bor­der enforce­ment to offer­ing 5 mil­lion more immir­grants the chance to avoid deportation.

The largely positive reviews of the DACA program, as well as the large number of immigrants who applied for it and high percentage (86) who were accepted, stand in stark contrast to the impact of the Morton memo, a June 2011 prosecutorial discretion directive.

The announce­ment stopped short of halt­ing all depor­ta­tions, a long-stand­ing demand of the immi­grant rights move­ment. Instead, the exec­u­tive action will allow the par­ents of Amer­i­can cit­i­zens and those who have been in the U.S. for more than five years the chance to obtain a work per­mit and a three-year reprieve from depor­ta­tion by pay­ing any out­stand­ing tax­es and pass­ing a back­ground check. The order will also remove the age restric­tion of the Deferred Action for Child­hood Arrivals (DACA), a 2012 pro­gram offer­ing immi­grants brought to the coun­try as chil­dren and born after 1981 a work per­mit and tem­po­rary relief from deportation.

The Secure Com­mu­ni­ties pro­gram, a much-maligned infor­ma­tion-shar­ing pro­gram between the FBI, Immi­gra­tion and Cus­toms Enforce­ment (ICE) and local­i­ties that activists have accused of ensnar­ing immi­grants who had lit­tle or minor legal infrac­tions, will be replaced by a new­ly cre­at­ed Pri­or­i­ty Enforce­ment Pro­gram,” which aims to also use bio­met­ric data to focus on deport­ing immi­grants with crim­i­nal offenses. 

Oba­ma is well with­in his legal pow­er to direct the Depart­ment of Home­land Secu­ri­ty to steer immi­gra­tion offi­cials in one direc­tion or anoth­er,” said Cesar Cuauhte­moc Gar­cia Her­nan­dez, a law pro­fes­sor at the Uni­ver­si­ty of Denver’s Sturm Col­lege of Law and a blog­ger at crim​mi​gra​tion​.com. The relief from depor­ta­tion for three years [for peo­ple brought to the Unit­ed States as chil­dren and par­ents] stands to make a huge difference.”

To under­stand how the exec­u­tive action will play out, it is worth look­ing at the two oth­er key exec­u­tive actions of the Oba­ma admin­is­tra­tion: DACA and the Mor­ton memo. Two of Obama’s exec­u­tive action key pro­pos­als, the expan­sion of DACA and the cre­ation of the Pri­or­i­ty Enforce­ment Pro­gram, are relat­ed to these past actions. 

DACA has been in effect since August 2012 and may be the most pop­u­lar immi­gra­tion ini­tia­tive of the Oba­ma pres­i­den­cy so far. The pro­gram sus­pends the depor­ta­tions of undoc­u­ment­ed immi­grants who were brought to the Unit­ed States as chil­dren and born after 1981, and allowed them to apply for a two-year work per­mit. More than 550,000 young peo­ple had been accept­ed into the pro­gram as of March 2014.

A key aspect of DACA was that it didn’t offer any per­ma­nent change in the immi­gra­tion sta­tus of a recip­i­ent. The mem­o­ran­dum also had spe­cif­ic require­ments for who was eli­gi­ble: those between age 15 and 30, were brought to the U.S. before the age of 16, and have a high school diplo­ma or GED. Assess­ing the ini­tia­tive two years lat­er, advo­cates said it left behind many young peo­ple who, if they had the abil­i­ty to get a bet­ter-pay­ing job under a work per­mit, could meet the miss­ing require­ment of hav­ing a GED or high school diploma. 

The large­ly pos­i­tive reviews of the DACA pro­gram, as well as the large num­ber of immi­grants who applied for it and high per­cent­age (86) who were accept­ed, stand in stark con­trast to the impact of the Mor­ton memo, a June 2011 pros­e­cu­to­r­i­al dis­cre­tion direc­tive by then-ICE direc­tor John Morton.

The memo called on immi­gra­tion per­son­nel to focus their enforce­ment efforts on immi­grants who posed pub­lic safe­ty threats. It offered sev­er­al options for pros­e­cu­to­r­i­al dis­cre­tion,” includ­ing can­celling a notice to appear in immi­gra­tion court, focus­ing enforce­ment on vio­la­tions such as felonies or reen­try vio­la­tions fol­low­ing a depor­ta­tion, and decid­ing whether to detain an indi­vid­ual based on whether they had been arrest­ed in the past or have strong ties in the Unit­ed States.

While oth­er direc­tives had made sim­i­lar procla­ma­tions direct­ing ICE agents to focus their enforce­ment atten­tion on immi­grants with crim­i­nal his­to­ries, the Mor­ton memo was unique in explic­it­ly stat­ing the respon­si­bil­i­ty of ICE per­son­nel to, among oth­er oblig­a­tions, con­sid­er pros­e­cu­to­r­i­al dis­cre­tion through­out their deal­ing with an immigrant’s case — even if an indi­vid­ual had not request­ed dis­cre­tion. The memo also man­dat­ed a plan to review all depor­ta­tion cas­es before immi­gra­tion courts, with the aim of stop­ping the depor­ta­tion of immi­grants not with­in ICE’s stat­ed pri­or­i­ties for removal: indi­vid­u­als who had com­mit­ted two or more felonies or a sin­gle aggra­vat­ed felony.

Essen­tial­ly, the Mor­ton memo was meant to reduce the num­ber of immi­grants with minor or no crim­i­nal com­plaints who end­ed up in depor­ta­tion pro­ceed­ings when stopped dur­ing a traf­fic arrest or oth­er encoun­ters with local police.

Togeth­er, these ini­tia­tives aimed to ease some of the bur­den of harsh immi­gra­tion enforce­ment poli­cies on Lati­no com­mu­ni­ties, who were a sig­nif­i­cant vot­ing bloc in elect­ing Oba­ma in 2008, while avoid­ing the polit­i­cal hur­dles of pass­ing immi­gra­tion reform through Con­gress. But in real­i­ty, only a frac­tion of cas­es in immi­gra­tion court were closed based on pros­e­cu­to­r­i­al dis­cre­tion: 6.8 per­cent as of August 2014, accord­ing to the Trans­ac­tion­al Records Access Clear­ing­house, a data col­lec­tion project based at Syra­cuse University.

And as of fis­cal year 2013, the major­i­ty of immi­grants deport­ed by the Oba­ma admin­is­tra­tion still had either no crim­i­nal offens­es or had been arrest­ed for a minor offense like a traf­fic vio­la­tion — an area that was not with­in ICE’s stat­ed list of pri­or­i­ties for deportation.

Three years since the direc­tive, while announc­ing his plan for the next exec­u­tive action in Novem­ber, Oba­ma admit­ted in a state­ment, We’re deport­ing peo­ple we shouldn’t be deporting.”

Deep into his sec­ond term, the gap between the Oba­ma administration’s stat­ed poli­cies and immi­grant com­mu­ni­ties’ lived real­i­ty has led to skep­ti­cism over the promise of exec­u­tive action this time. A group of immi­grants held a civ­il dis­obe­di­ence action on Novem­ber 18 in Chica­go in which they pre­sent­ed them­selves to immi­gra­tion author­i­ties, say­ing they want­ed pros­e­cu­to­r­i­al dis­cre­tion applied to their case and were unwill­ing to wait for Oba­ma to issue his next action.

If ICE isn’t wast­ing time vio­lat­ing our rights while the Pres­i­dent delays, nei­ther will we wait anoth­er minute to defend them,” said Rosi Car­ras­co, an immi­gra­tion activist who attend­ed the meet­ing with ICE. We won’t stand for one more rumor or one more delay. All of us deserve relief and we deserve it now. ”

The Nation­al Day Labor Orga­niz­ing Net­work (NDLON), a nation­al umbrel­la-group for orga­ni­za­tions work­ing to improve the lives of the most­ly immi­grant work­force of day labor­ers, released a report in Octo­ber titled Destruc­tive Delay,” high­light­ing the bleak real­i­ty faced by immi­grant com­mu­ni­ties while they await­ed leg­isla­tive change. This includ­ed tar­get­ed oper­a­tions by ICE, some­times work­ing with local police, that ter­ror­ized vul­ner­a­ble com­mu­ni­ties and often end­ed up deport­ing peo­ple who were not the oper­a­tions’ intend­ed tar­gets, along with tac­tics tar­get­ing immi­grants at parole hear­ings or even out­side men­tal health or sub­stance abuse coun­sel­ing sessions.

The expan­sion of immi­gra­tion author­i­ties into parole offices or oth­er judi­cial set­tings means that even with changes like an expan­sion of DACA, depor­ta­tions could still con­tin­ue apace with­out a more expan­sive leg­isla­tive reform that also halts the depor­ta­tion of peo­ple with crim­i­nal records, the report said. It’s like some­one eat­ing all the ice cream in the freez­er on Sun­day know­ing they’re going on a diet on Mon­day,” said an unnamed orga­niz­er quot­ed in Destruc­tive Delay.

Immi­gra­tion author­i­ties them­selves have said that changes in immi­gra­tion law, and espe­cial­ly the move­ment in more than 100 local­i­ties to refuse to hon­or ICE requests to detain undoc­u­ment­ed immi­grants arrest­ed for non-immi­gra­tion charges, have forced them to find new ways to deport peo­ple, such as the tac­tics detailed in NDLON’s report.

While it’s true that juris­dic­tions not hon­or­ing ICE detain­ers has result­ed in an increase of fugi­tive oper­a­tions in the field, the agency is focused, first and fore­most, on the arrest and removal of con­vict­ed crim­i­nal indi­vid­u­als who pose the great­est threat to pub­lic safe­ty,” said a state­ment from Immi­gra­tion and Cus­toms Enforcement.

Anoth­er issue high­light­ed in the Destruc­tive Delay report — and which remains an open ques­tion for any exec­u­tive action the pres­i­dent might issue — is what it would take to make sure any direc­tives from the Oba­ma admin­is­tra­tion are imple­ment­ed. The report accus­es ICE of hav­ing very lit­tle account­abil­i­ty between its nation­al offices and local head­quar­ters and says direc­tives from upper offices take weeks to trick­le down or are ignored.

There has been a divide between DHS head­quar­ters, what DHS is say­ing and what they are in fact doing,” says Her­nan­dez, the attor­ney. Pros­e­cu­to­r­i­al dis­cre­tion was the big devel­op­ment in the Oba­ma admin­is­tra­tion where the field-lev­el offi­cials were extreme­ly reluc­tant to use their authority.”

ICE agents sued the heads of the Depart­ment of Home­land Secu­ri­ty, then-Sec­re­tary Janet Napoli­tano, and ICE direc­tor Mor­ton, in August 2012 argu­ing that enforc­ing DACA and pros­e­cu­to­r­i­al dis­cre­tion pre­vent­ed them from doing their job and enforc­ing immi­gra­tion laws.

The Pri­or­i­ty Enforce­ment Pro­gram, said Her­nan­dez, was noth­ing new from a legal per­spec­tive, in terms of direct­ing enforce­ment activ­i­ties’ focus. But to make sure it suc­ceeds, he said, the onus will be on the Oba­ma admin­is­tra­tion to make sure the immi­gra­tion author­i­ties work­ing with offi­cers actu­al­ly enforce the direc­tive, which is expect­ed to come with a pay raise for ICE officers.

They have to spend a good amount of atten­tion mak­ing sure that their field offi­cers are going to com­ply with the president’s orders,” says Hernandez.

At a view­ing of Obama’s immi­gra­tion speech on Thurs­day night in Chica­go held by a local activist group called Orga­nized Com­mu­ni­ties Against Depor­ta­tions, there were mixed feel­ings about the exec­u­tive action. Genaro Her­nan­dez, who says he has been in the Unit­ed States with­out papers since 1997, was arrest­ed while dri­ving with­out a license in high school and placed into depor­ta­tion proceedings.

Genaro is excit­ed that his father will ben­e­fit from the changes in exec­u­tive action. But as for him­self and the rest of his fam­i­ly, said Genaro, it’s just not enough to help us too.” 

Yana Kuni­choff is a Chica­go-based inves­tiga­tive jour­nal­ist and doc­u­men­tary pro­duc­er. Her work has appeared in the Guardian, Pacif­ic Stan­dard and the Chica­go Read­er, among oth­ers. She can be reached at yanaku­ni­choff at gmail​.com.
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