Last Thursday the White House announced a new policy of prosecutorial discretion, through which the Department of Homeland Security (DHS) will conduct a case-by-case review of 300,000 pending deportation cases. The policy, which will also apply to future enforcement efforts, aims to weed out non-priority cases, such as those of undocumented youth raised in this country, soldiers, and same-sex couples. Thursday?s announcement follows a June 17 memo issued by Immigration and Customs Enforcement (ICE) director John Morton that laid out a full list of non-priority groups. The new policy effectively orders the suspension of deportations for members of these groups and offers them the possibility of work authorization.
Without question, this is the biggest action that the White House has taken on immigration since the DREAM (Development, Relief, and Education for Alien Minors) Act?s defeat in the Senate last December?and possibly since the president took office in 2009. Particularly in the relief offered to undocumented youth raised in this country (Dreamers), this new policy is a logical second-best option to DREAM, given the impossibility of passing any bill offering legalization to undocumented immigrants in the current Congress. It means these young people and many of their family members will not live in fear, and it gives them the prospect of earning a living. Moreover, it is entirely consistent with the administration?s explicit efforts to focus its limited immigration enforcement resources on deporting felons rather than people without a criminal record.
While the president and DHS Secretary Janet Napolitano deserve significant credit for this step in offering administrative relief to undocumented immigrants who fall outside their ?criminal aliens? focus, it bears mention that the administration was very reluctant to come this far and did so only after considerable grassroots pressure.
While expressing sympathy for Dreamers and other non-criminals caught in immigration proceedings this year, President Obama and Secretary Napolitano, citing legal obstacles, have repeatedly refused to grant relief to a class of people like Dreamers. Moreover, the administration has drawn Latino and immigrant advocacy groups? ire by continuing to flaunt its record-breaking enforcement numbers?one million deportations in two-and-a-half years?as a way of convincing the American public of its ?toughness.? And, despite a surge of criticism from Latino and immigrant advocacy groups of one of ICE?s flagship enforcement programs, Secure Communities (S-Comm, through which ICE gains access to the fingerprints of people who come into contact with local police), DHS has suggested it will only accept mild reforms to the initiative.
Thursday?s policy shift follows months of vocal criticism and protest from youth-led organizations and other immigrant advocacy groups, who have been a thorn in the president?s side and demonstrated his vulnerability among the Latino electorate. Protest has taken many forms. Organizations of undocumented youth publicized and fought deportation cases of individual Dreamers under the mantle of their Education Not Deportation (END) campaigns. Activists have embarrassed the president at public events, like last month?s National Council of La Raza (NCLR) annual conference, with interruptions and uncomfortable questions about deporting Dreamers. Representative Luis Gutierrez (D-IL) got himself arrested in front of the White House to protest current enforcement policies. Several groups have pursued a Freedom of Information Act case against DHS to release info on S-Comm, which has already revealed embarrassing evidence that the department misinformed the public. And protesters have besieged the S-Comm Task Force?s first public hearings.
Without all this protest and the media attention it has garnered, it?s hard to imagine that Thursday?s memo would have materialized. And, given the administration?s intransigence, Latino and immigrant advocacy groups have reacted with some ambivalence to the newly professed policy. On the one hand, national groups like the NCLR, the National Immigration Forum, and United We Dream (UWD, the largest national network of Dreamer activists) have welcomed the president?s decision for the relief it promises for thousands of undocumented people. On the other hand, these same groups, and others like the Illinois Coalition for Immigrant and Refugee Rights, CASA de Maryland, and the Colorado Immigrant Rights Coalition, remain cautious. They have heard immigrant-friendly rhetoric from the White House before, but they have yet to observe concomitant policy changes.
Three major questions remain about the new enforcement policy.
First, to what degree will it actually be implemented? The rank-and-file immigration enforcement officials at DHS are notorious for their insensitivity to immigrants and their eagerness to deport people. In fact, when John Morton issued his June memo, one union claiming to represent over 7,000 ICE employees announced a vote of ?no confidence? in him. It remains unclear how the DHS leadership can ensure that ICE staff properly execute this new directive. As Marshall Fitz, Director of Immigration Policy at the Center for American Progress, noted: ?This is a policy change that will rely heavily on people on the ground making smart judgments in how they interpret this memo.? This means that there will be no shortage of work for Latino and immigrant advocacy groups. Gaby Pacheco, of UWD, said that advocates are ?going to have to help protect and make sure that DHS follows through. We?re going to have to be behind each one of these cases.? But, with 300,000 cases being reviewed, it?s still unclear who, if anyone, has the capacity to ensure that these cases are handled correctly. (On a positive note, the new policy has already resulted in at least two suspensions of deportation cases.)
Second, how will the White House respond to the inevitable Republican backlash? In recent months, Republicans like Senator David Vitter (LA) and Representative Lamar Smith (TX) have loudly decried any use of prosecutorial discretion, going as far as drafting the HALT (Hinder the Administration?s Legalization Temptation) Act to handcuff the administration. With Thursday?s announcement offering the clearest expression of the president?s intention to grant relief to certain groups of undocumented immigrants, restrictionists are already ratcheting up their accusations of ?administrative amnesty.? The Republican primary contest could amplify such criticism. It remains to be seen how strongly the administration will publicly defend its decision. In its first two-and-a-half years, it has largely failed to define the debate on this issue.
Third, how will this new policy directive affect advocacy groups? efforts to end S-Comm? In recent months, opposition to the fingerprint-sharing program has exploded. Advocates and state and local officials have loudly denounced the program for ensnaring mere traffic violators, as well as victims of and witnesses to crimes. Criticism became even more furious when DHS asserted that cities and states could not opt out of the program?which contradicted earlier statements that the program was ?voluntary.? DHS has convened a national task force to review the program, but its limited mandate may foreclose the possibility of a comprehensive review.
Thursday?s announcement could deflate the campaign against S-Comm, as this new policy will ostensibly ensure that non-priority cases are removed from the deportation rolls. But the fiercest opponents of S-Comm, such as the National Day Laborers? Organizing Network (NDLON)?which joined other groups last week in issuing a scathing report on the program?remain unconvinced. Chris Newman, NDLON?s legal director, said in response to the DHS memo, ?In order to fulfill its promises, the Obama administration must end policies like Secure Communities that result in the criminalization of innocent immigrants who are Americans in Waiting like those who came before them.? Many remain concerned about the expansion of local law enforcement officials? involvement in immigration issues, including scores of elected officials (not least the governors of Massachusetts, New York, and Illinois, who have tried to opt out of S-Comm) and police chiefs who have criticized it for straining police-community relations and facilitating racial profiling.
While it seems unlikely that DHS will discontinue S-Comm entirely, public pressure could have a role in how far the task force?s recommendations go and the degree to which the agency accepts and implements them. For instance, if S-Comm remains in place, will the agency consider reducing its scope to checking the immigration status of people accused of serious felonies, rather than anyone who is booked into local prisons? And would such a step be sufficient to satisfy most of the advocacy organizations? For now, these questions remain unanswered, and organizations fighting against S-Comm will need to determine how much pressure to put on the Obama administration in the wake of last week?s victory.
In sum, while Thursday?s memo signals an important policy shift, we still don?t know how it will be implemented and whether this is a prelude to important reforms of S-Comm. What is clear is that grassroots pressure proved critical in prompting this policy shift; to achieve any substantial reform to S-Comm, Latino and immigrant advocacy groups will have to keep the pressure on.
Image: protesters at a public DHS hearing on Secure Communities in Chicago (Sarah-Ji, 8/17/2011, Flickr creative commons)