What the White House Does on Deportations Means a Lot for the Future of Immigration Reform

Strong executive action would indicate dim prospects for legislation to pass Congress.

WASHINGTON - JULY 28: Dozens of U.S.-born children from across the country traveled to the White House with their undocumented parents to march and demonstrate against recent deportations July 28, 2010 in Washington, DC. Organized by CASA de Maryland, Familias Latinas Unidas, and other organizations, marchers describing themselves as "Obama Orphans," or children whose parents have been deported, called on President Barack Obama to keep his campaign promise of comprehensive immigration reform. 
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Elahe Izadi
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Elahe Izadi
March 24, 2014, 6:15 p.m.

The Obama ad­min­is­tra­tion has a ma­jor de­cision to make re­gard­ing its ap­proach to de­port­a­tions. And whatever it does after a new Home­land Se­cur­ity De­part­ment re­view will sig­nal the polit­ic­al pro­spects of a com­plete im­mig­ra­tion over­haul.

After months of pres­sure from ad­voc­ates want­ing great­er pro­tec­tions for un­doc­u­mented im­mig­rants, Pres­id­ent Obama asked Home­land Se­cur­ity Sec­ret­ary Jeh John­son to con­duct, as the White House put it, “an in­vent­ory of the de­part­ment’s cur­rent prac­tices to see how it can con­duct en­force­ment more hu­manely with­in the con­fines of the law.” John­son will meet with con­gres­sion­al ad­voc­ates this week, the first step in a pro­cess that could res­ult in re­forms that would change how de­port­a­tion is pri­or­it­ized.

Polit­ic­ally, Obama is in a Catch-22. If he does too much to curb en­force­ment, he runs the risk of mak­ing it tough­er for Re­pub­lic­ans to back com­pre­hens­ive im­mig­ra­tion re­form. But his ad­min­is­tra­tion has over­seen a re­cord num­ber of de­port­a­tions, so if he doesn’t do enough, he could ali­en­ate re­form ad­voc­ates and His­pan­ic voters—among whom his ap­prov­al rat­ings have plummeted.

“If the pres­id­ent were to take very strong ex­ec­ut­ive ac­tion … he would be com­pletely writ­ing off im­mig­ra­tion re­form un­til 2016,” says Theresa Car­din­al Brown, the im­mig­ra­tion policy dir­ect­or at the Bi­par­tis­an Policy Cen­ter. “I would have a hard time see­ing how Re­pub­lic­ans move for­ward with re­form in that at­mo­sphere.”

While the GOP has its own polit­ic­al reas­ons for ex­amin­ing re­form, Re­pub­lic­ans are already far from eager to act on im­mig­ra­tion as things stand now, par­tic­u­larly in a midterm-elec­tion year. The Re­pub­lic­an Na­tion­al Com­mit­tee’s post-2012 elec­tion “autopsy” re­port took a rare policy stance, de­clar­ing that the GOP “must em­brace and cham­pi­on com­pre­hens­ive im­mig­ra­tion re­form” for the fu­ture of the party. RNC Chair­man Re­ince Priebus says he still stands by that state­ment but adds that “com­pre­hens­ive im­mig­ra­tion re­form” means something dif­fer­ent to every­body. In­stead, he is ur­ging Re­pub­lic­ans to con­duct out­reach to the His­pan­ic com­munity.

Giv­en that halt­ing polit­ic­al land­scape, many ad­voc­ates want the pres­id­ent to do what he can now. Obama in­creased pro­tec­tions in 2012 when he en­acted De­ferred Ac­tion for Child­hood Ar­rivals, or DACA, which sus­pends de­port­a­tion pro­ceed­ings and provides tem­por­ary work au­thor­iz­a­tion for “dream­ers.” While that was a wel­come step for ad­voc­ates, many now want that pro­tec­tion ex­ten­ded to in­clude the par­ents of dream­ers or U.S. cit­izens.

Re­pub­lic­ans are already char­ging Obama with over­step­ping his con­sti­tu­tion­al au­thor­ity. This month, the House passed the En­force Act, which would let Con­gress sue the pres­id­ent for fail­ing to up­hold par­tic­u­lar fed­er­al laws, such as im­mig­ra­tion. House Speak­er John Boehner has said he’s still com­mit­ted to re­form but that lack of trust with  Obama is hold­ing things up.

Rep. Mario Diaz-Bal­art, R-Fla., who backs re­form, said drastic ex­ec­ut­ive ac­tion on halt­ing de­port­a­tions “would be a sig­nal that the pres­id­ent wants to kill im­mig­ra­tion re­form.”

“There are some who are look­ing for any ex­cuse not to move for­ward on im­mig­ra­tion re­form, ab­so­lutely,” Diaz-Bal­art said. But “for a num­ber of oth­er folks who gen­er­ally want to get it done … it is an ad­di­tion­al is­sue. You can­not min­im­ize the im­pact of the pres­id­ent’s lack of cred­ib­il­ity.”

Many ad­voc­ates re­ject the premise that sweep­ing ex­ec­ut­ive ac­tion means re­form is dead this year; rather, they say, it’s the pres­id­ent’s job to ex­am­ine his ad­min­is­tra­tion’s policies.

“The im­mig­ra­tion sys­tem is totally broken, and we’re at a point of ur­gency of get­ting something done,” says Greg Chen, ad­vocacy dir­ect­or at the Amer­ic­an Im­mig­ra­tion Law­yers As­so­ci­ation. “So AILA is ex­plor­ing every pos­sible tool, wheth­er it’s con­gres­sion­al or [via] the ad­min­is­tra­tion, as long as it’s with­in the bound­ar­ies of the law and makes for good policy,” he said.

Obama has pre­vi­ously said that any ex­ec­ut­ive ac­tion to halt all de­port­a­tions would be il­leg­al. Some of the changes now un­der con­sid­er­a­tion, the Los Angeles Times re­ports, in­clude pri­or­it­iz­ing the de­port­a­tion of un­doc­u­mented im­mig­rants with pri­or crim­in­al con­vic­tions who pose a threat to pub­lic safety; ef­fect­ively halt­ing de­port­a­tions of those with no crim­in­al con­vic­tions oth­er than im­mig­ra­tion vi­ol­a­tions; and cut­ting back on the de­ten­tion of such “low-pri­or­ity” un­doc­u­mented people in jails.

Le­gis­la­tion is the only way to cre­ate a per­man­ent change, be­cause any kind of ex­ec­ut­ive ac­tion would ob­vi­ously be tem­por­ary—”stanch­ing the blood flow,” as the Bi­par­tis­an Policy Cen­ter’s Brown puts it.

Even though ad­voc­ates on the left in­tend to con­tin­ue pres­sur­ing Re­pub­lic­ans, who they be­lieve are hold­ing up re­form, they also want re­lief for un­doc­u­mented im­mig­rants. Thus they be­lieve that Obama will even­tu­ally have to do something more than what’s already in place.

“At some point, this sum­mer or later this spring, the pro­spects of Re­pub­lic­ans ac­tu­ally do­ing something won’t pass the laugh test,” said a House Demo­crat­ic aide. “And the pres­id­ent is in much freer po­s­i­tion to do something that needs to be done.”

Alex Roarty contributed to this article.
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