As I have managed to somehow find five free minutes in my busy schedule between the exams that ended yesterday and the new papers and exams I will be working on after this weekend, I thought the timing would be perfect to sit down and write a bit about a topic that will undoubtedly monopolize headlines over the next few days and yet be understood by few: President Obama’s Immigration Plan.
I use the term “plan” loosely as Obama’s directive should not really be thought of as a comprehensive plan, or solution, to the nation’s immigration problems. Rather, they serve a dual purpose. First, to provide temporary relief to undocumented persons who have been residing in the U.S. for over 5 years, allowing them opportunities to work and become educated legally by instruction to Department of Homeland Security to un-prioritizing their deportations and, instead, focusing on deporting undocumented individuals with criminal histories and preventing new immigrants from entering the country. The second purpose is purely political, a way to hopefully spur Congress into action to come up with a long-term reform that can replace this executive directive.
In this short article I will try to clarify (1) an explanation of exactly what President Obama’s directive entails and accomplishes, (2) the legality of this new directive, and (3) the politics at play in this situation and why Obama chose to take executive action and what that means for immigration policy in the near future.
I. An Explanation of Obama’s Immigration Directive
In essence, Obama’s new immigration directive makes three key changes: (A) Expansion of Deferred Action, (B) Prioritized Deportation, and (C) Expanded Border Security.
Obama’s deferrals for current undocumented immigrants is twofold. First, Obama will introduce a new deferral program that will affect an estimated 4 million undocumented persons who have been in the country for at least five years and are also the parents of American citizens or legal permanent residents. This program will allow these undocumented immigrants to remain in the country and legally work for a period of three years at which point their deferral would be subject to renewal.
The plan will also expand the Deferred Action for Childhood Arrivals program created by Obama in 2012. The plan, which currently covers over 1.2 million young immigrants and would expand to approximately 300,000 more, allowing these young immigrants deportation deferrals as well as work permits.
Crucial to note is that deferred action does not confer any lawful immigration status to immigrants that it effects. In other words, deference does not “legalize” these immigrants, it merely allows their current stay to be a little bit more stable, allowing them opportunities for gainful employment or education, while deferring their deportation priority to a later date in favor of immigrants who present a higher priority to deport (such as those who present immediate security risks).
Another large part of Obama’s plan is directing the Department of Homeland Security (DHS) to prioritize the deportation of immigrants that pose more serious and immediate security threats over those who have been living in the U.S. for periods of over five years and are related to legal residents here when allocating their limited resources to enforce immigration law. Now, what exactly does this mean?
There are currently an estimated 11.4 million unauthorized immigrants residing in the U.S. according to the Migration Policy Institute. Despite this, Congress has appropriated only enough funds for DHS to have the capacity to deport approximately 400,000 persons per year. Due to this strikingly large discrepancy, DHS necessarily must decide which 400,000 immigrants to deport. They could do this in one of two ways: (1) haphazardly, choosing merely to deport as many persons as possible regardless of any specific criteria save for their undocumented status; or (2) by creating a strict criteria of priority that dictates which persons they will target first. This is where Obama’s plan comes in.
Obama’s plan sets out three distinct levels of priority which are as follows:
- The Highest Priority – Aliens who pose a serious threat to national security, border security, or who are related to gangs, violent offenses, and terrorism.
- Second Highest Priority – Aliens who have been convicted of multiple misdemeanors, who have been apprehended in the act of illegally entering the country, or who have abused the visa waiver programs.
- Third Priority – Parents of U.S. citizens or legal permanent residents who have been in the U.S. for less than five years
The policy would also lay out a large list of factors that DHS personnel should consider when making their deportation decisions, however this list, along with the priority levels laid out above, are by no means absolute and there is significant room left for DHS personnel to make judgments based on other factors. It is important to note that these new DHS policies are very much consistent with the priorities outlined by Congress. When appropriating funds for immigration enforcement, Congress specifically directed the DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”1
Finally, Obama has promised to commit more resources to border security in an effort to prevent more immigrants from making their way to the U.S. Not much to this one.
Overall, Obama’s plan has the potential to protect anywhere from 4-5 million undocumented immigrants in some way or another while 1.2 million were previously covered under the Deferred Action for Childhood Arrivals plans of 2012.2
II. Is this legal?
What a lot of people are wondering, and what the major commentators on both sides of this issue will be debating, is whether what the President did was legal. The short answer is: yes, this is completely legal. For those interested in a full legal analysis of these policies, the Department of Justice has kindly published a memorandum on the legal authority of the President to prioritize the removal of certain unlawful immigrants and defer others.
First, let’s look at the deportation prioritization directive given to DHS. As we mentioned earlier, the DHS has finite resources to combat a very large problem with the ability to deport just slightly over 3% of the undocumented immigrant population currently residing in the U.S. per year. Thus, by the very necessity of their situation, DHS must make some decision on how they will allocate these resources, and traditionally this has been by setting definite priorities on immigrants to target for deportation. The executive retains the power of prosecutorial discretion to determine exactly when and how to enforce our immigration laws. In this situation, the President is using this power to decide exactly how we will allot the limited resources of the DHS to prioritize the deportation of the massive illegal immigration population currently residing within the country.
The second legal concern would be over the President’s deferred action program, which the Justice Department’s memo similarly notes as being within the legal discretion of the President. The practice of providing immigration deferrals has long been recognized by both Congress and the Supreme Court3 The process is highly individualized, with much of the discretion over its implementation being given to the appropriate DHS personnel. This practice greatly resembles deferred action programs implemented by Congress and similarly lies within the realm of the prosecutorial discretion power that the executive holds, making it undoubtedly legal. Additionally, over 100 law professors have affirmed their support over the legality of both the DACA and DAPA programs under the President’s authority4
III. The Politics
Now, it’s quite clear that Obama’s plan is absolutely not a long-term solution. Deferments given out to undocumented immigrants today, though they last longer than previous deferments–3 years instead of 2–are still a short-term solution to a long-term problem. So why is this move being so hotly debated, and why would the President make such a move? Surely it would be better to work on a long-term immigration reform plan?
The answer is that this move comes after a long and ultimately fruitless effort at creating a bipartisan immigration reform law in Congress. Specifically, the most recent failure came in the House which refused to vote on a bipartisan Senate bill (the “Border Security, Economic Opportunity, and Immigration Modernization Act”).5
Obviously Obama’s immigration “plan” is less than ideal. It fails to repair a system in which the wait time on the upper end for immigrants from countries such as Mexico to become naturalized citizens can be up to 10 years and in which approximately 11.4 million undocumented immigrants continue to stay out of the reach of the system.6 The best possible outcome from this executive action is to spur a defiant Congress into action to pass some kind of top-down, comprehensive immigration reform package. Until then, we have no choice but to continue applying patches, such as Obama’s, to prevent the gaping holes in the U.S. immigration system from becoming even larger at the expense of both American citizens as well as those who wish to attain such status.
- Department of Homeland Security Appropriations Act, 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 [↩]
- Migration Policy Institute, 2012 data [↩]
- Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484. [↩]
- https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-letter.pdf. [↩]
- https://www.congress.gov/bill/113th-congress/senate-bill/744. [↩]
- http://www.cnn.com/2013/11/06/us/immigration-statistics-fast-facts/. [↩]