OPINION: Obama’s Mixed Legacy on Immigration

by Matthew Bray

Obama’s election signaled a turning point in American politics and was welcomed by progressives everywhere as the culmination of generations of civil rights activism. Immigrant communities, particularly Latin American communities, were a major part of the Obama coalition, and looked forward to significant and long overdue reform of immigration laws that would provide a path to citizenship for the more than 12 million estimated undocumented immigrants in the United States.

Eight years later. Where are we? No immigration reform, and more than 2.5 million removed from the US or returned to their home countries, according to government data. In the years before Obama came into office, the Republican administration before him was on track to pass comprehensive immigration reform, but it was stalled and ultimately never acted upon, in the shadow of criticisms from the right (of the overall plan to provide a path to citizenship) and from the left (of the proposed guest worker program). This bill also contained a version of the DREAM Act. It is hard to believe in today’s even more polarized political environment that so many Republicans sponsored that bill. But even then Republicans were willing to cross the aisle and work to pass comprehensive reform only upon a clear commitment by the executive branch that it would beef up border enforcement and increase removals.

As the key piece of immigration-related legislation prior to taking office, this 2007 bill established the parameters inside which Obama expected to operate as an honest broker with his congressional colleagues. As such, Obama believed that if his administration demonstrated, in good faith, that it was serious about enforcement, Republicans in Congress would be willing to deal in good faith on a renewed effort for comprehensive reform. Obama therefore made use of an advanced deportation apparatus to do just that, and in the process has wreaked havoc on immigrant families and communities, many of which were caught by surprise to find that they were in the line of fire.

Obama engaged his critics to the right by pointing to the enforcement statistics, and told his critics to the left that he was powerless to change the laws without support from Congress. Immigrant rights activists and legal experts reminded the president that, when it came to enforcement, he did in fact have power. In 2010, the secretary of Homeland Security issued the first of a number of memoranda related to prosecutorial discretion, the well-established legal doctrine that says that the executive does have a say in how it enforces the laws with its limited resources.

These memos—which established priorities for enforcement and a list of mitigating factors to be considered by Immigration and Customs Enforcement (ICE) decision makers—became new tools in the arsenals of advocates and lawyers fighting deportations; however, the implementation of these memos has been very uneven—in some districts, on the strength of these memos, removal proceedings were cancelled, or administratively closed, and families were spared the pain of losing a loved one. In others, those who clearly did not fall into a top priority for enforcement (reserved for individuals with serious criminal histories and those considered a threat to public safety) were nonetheless the subject of arrest, detention, and deportation.

In 2012, after Congress failed to pass renewed versions of the DREAM Act, Obama announced the first DACA program. Not a law, but rather an administrative fix, DACA promised a two-year reprieve from deportation and work authorization to some people brought to the US as children. Obama created and rolled out the provisional waiver I-601A program the following year. This program allows certain immediate relatives of US citizens in the US without documentation to obtain a waiver of the ten-year bar that they would otherwise face once they departed the country to complete the consular processing of their permanent residence (Green Card) applications.

To his credit, Obama has also extended Temporary Protected Status to nationals of several countries during his time in office, as humanitarian responses to natural disasters (such as the earthquakes in Haiti in 2010 and Nepal in 2014), disease (such as the Ebola epidemics in Liberia, Sierra Leone, and Guinea), as well as war and political crisis (in Syria, Sudan, and South Sudan). In fact, Obama has designated TPS for more countries than any president before him. In addition, on November 20, 2014, Obama announced a series of new administrative fixes intended to make progress on a number of areas of immigration law held hostage to Congress’s inaction. These included an expansion of the DACA program and the creation of a similar program for parents of US citizens and lawful permanent residents (called DAPA). The memos also announced an expansion of the I-601A program (to take effect in August this year), and established new programs for immigrant entrepreneurs and job creators, and new rules to allow immigrant workers stuck in the visa backlog to apply for their Green Cards at an earlier stage in the process. The administration has also created a refugee program for Central American youth caught up in the humanitarian crisis that has spurred hundreds of thousands to make the dangerous trek across Mexico to the US.

These programs have undoubtedly helped (and we hope will continue to help) thousands of people that would otherwise have lived in the shadows, but they are a far cry from the comprehensive reform needed to address the underlying problems that have created deep divisions in our society—where immigrants are regularly vilified in the media and by presidential candidates. And some of the reforms represented by the November 2014 announcements have not been followed. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University analyzed the use of detainers since November 2014 and found that ICE officers on the ground are largely ignoring the Secretary of Homeland Security’s directive to focus detainers on immigrants with criminal history. Unless and until there is comprehensive reform and a sustained executive commitment of respect for immigrants and refugees, and the humanitarian exercise of prosecutorial discretion, we will continue to see our immigrant neighbors and families used as political footballs, and experience even more suffering.