By: Nikki Hager, Research Fellow at the Council on Hemispheric Affairs.
A good deal has transpired in the immigration field: the Soviet Union collapsed, the Internet has come to penetrate daily life, and China is cementing itself as a global super power. In fact, despite massive political, demographic and economic changes, Washington’s immigration policy has not changed significantly for almost 25 years. The Obama Administration’s immigration system continues to be an antiquated, hedged mess that makes legal migration often all but impossible for many to achieve. Meanwhile, the undocumented population in the U.S. continues to grow and is currently estimated at 11 million people.1
Despite a massive increase in border enforcement funding, every US president for the past several decades has made fundamental decisions about how their administration will enforce current legislation, with few earning any success. The Obama Administration has deported more immigrants than most of its predecessors, earning the president the nickname “deporter-in-chief”. In 2013, 438 thousand immigrants were deported, more than in any previous year. President Obama is, however, taking a more progressive approach than in the past. He has granted the opportunity for temporary deportation relief to over five million undocumented immigrants through executive actions known as the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parental Accountability (DAPA), the latter has yet to be applied.2
The Obama Administration has run into some tough challenges: a precedent of mass deportation, an uncooperative congress, and, of course, raw politics. On the one hand, the Obama Administration has turned to such impediments as tactics that bypass immigration courts, truncating immigrants’ access to due process as well as serving democracy’s cause. On the other hand, President Obama’s use of executive privilege has stopped the deportation of the families of U.S. citizens and has granted more freedom to millions of undocumented immigrants.
Turning them back vs. Deportations
A study by the Center for American Progress, a Washington think-tank, estimates that it would cost $285 billion over 5 years to deport all of the estimated 11 million undocumented immigrants currently in the country. Even without considering the costs, there are obvious consequences of deporting millions of members of U.S. society as many undocumented immigrants have families who are legal U.S. residents; families are regularly torn apart because a father or a mother is an undocumented migrant but their children are U.S. citizens. Moreover, from an economic standpoint, undocumented migrants are estimated to constitute around 5 percent of the U.S. workforce. Losing these workers would be a big hit to the U.S. economy.3
The realistic possibility of the Department of Homeland Security (DHS) actually deporting so many people is highly unlikely. With an annual budget of around 70 billion, the president must make decisions about how to best enforce federal policy under budgetary restraints.4 Immigration court backlog has also strained the enforcement of immigration laws. Immigration court funding and the number of judges have remained stagnant, despite a massive increase in the number of cases in the system.5
The George W. Bush Administration “returned”, rather than deported, millions of immigrants to Mexico. By “returning” rather than deporting, the U.S. government successfully bypassed the expensive process of sending immigrants through Immigration and Customs Enforcement (ICE) (including taking finger prints or recording them) while not requiring migrants to have to go to immigration court judges, another expensive procedure. Over 8.3 million migrants were returned, compared to 2 million “removals” or deportations that went through individual review and other legal procedures. However, because it was impossible to distinguish between first-timers and those who had already made multiple attempts, some individuals were counted in the total of returned migrants multiple times.
Towards the end of the second Bush Administration, the DHS shifted towards a policy on tracking down “removals,” which carried harsher punishments, including fines and potential jail time, in hopes of deterring immigrants from trying to cross the border multiple times. The Obama Administration has continued this policy. In fact, throughout President Obama’s presidency, the majority of deportations have shifted from the interior of the country to near the border. The percentage of deportations that were recent border crossers rose from 64 percent in 2009, to 67 percent in 2014.6 While recent border crossers are now being processed instead of simply being “turned back,” the majority of these recent arrivals are eligible to be treated on an expedited basis for administrative removal that does not require for their case to be heard by an immigration court judge.
Bypassing the backlogged courts allows the United States to deport undocumented refugees much more rapidly. However, expedited removal often comes at a price. Allowing immigration officials to act as both prosecutor and judge often results in gross oversights or distortions, including individuals being awarded inappropriate eligibility to apply for legal status, misrepresentation of their ties to the country, and whether or not they have the proper U.S. citizen family links.
Secure communities: Deporting criminals, causing problems
A capstone of President Obama’s immigration strategy has been to expedite the deportations of undocumented criminals. Between 2008 and 2013, the percentage of deported immigrants classified as “criminal aliens” almost doubled, from 31 to 59 percent. However, only half of this portion of immigrants had been granted an immigration hearing. The Secure Communities program is largely responsible for this rapid increase.
Secure Communities was started in 2008 under the Bush Administration, but rapidly expanded when President Obama came into office. The program works in conjunction with state and local law enforcement. When the latter makes an arrest, then fingerprint data is sent to the FBI. If that data comes from one of the 1,595 jurisdictions that participate in Secure Communities, then it is sent to the DHS. The DHS then checks the fingerprints against the Automated Biometric Identification System (IDENT), which contains the fingerprint information of over 91 million people, including travelers, people who have applied for immigration benefits, and those who have violated immigration laws in the past. When it detects a match, ICE determines whether the person is deportable. If immigration officials wish to investigate an individual’s immigration status, then ICE issues a detainer, requesting that local police notify immigration authorities when the person is released from criminal custody and hold the individual for up to two days awaiting transfer to ICE.7
At first glance, Obama’s “murder-not-mothers” approach seems to be a solid policy. However, there are glaring flaws in Secure Communities. A study by University of California – Berkley concluded that the system pushes individuals through quickly, without appropriate checks or opportunities to contest their detentions. Ultimately, Latinos are overrepresented, making up 93 percent of individuals arrested through Secure Communities, despite only comprising 77 percent of the undocumented population of the country. Of the half of individuals arrested through Secure Communities that actually have had an immigration hearing, only 24 percent have legal representation, compared to 41 percent of all individuals in the immigration courts.8
Moreover, the program has also been criticized for its spillover effects on community policing. This program creates a perception within immigrant communities that local police act as ICE agents, making many victims and witnesses to crimes unwilling to report them to police in fear that they would be deported. Advocacy groups also assert that Secure Communities creates an incentive for some law enforcement agencies to engage in racial profiling, targeting Latinos for minor violations. Furthermore, the program has led to the mass deportation of low-level offenders, like those with traffic violations and without a criminal history.9
Punishing employers, not employees
President Obama has also broken away from Bush-era workplace raids that targeted industries that were well known for hiring undocumented immigrants, such as meatpacking and hotel industries. These kinds of raids tended to punish employees instead of employers.10 President Obama has now shifted to “paper raids” or I-9 audits, which check to see if employers have made good faith efforts to verify workers’ eligibility by completing an I-9 form. I-9 audits have since soared from 503 in 2008 to 8,000 in 2009.11 Under the Obama administration, ICE announced sanctions, including large fines against major employers such as Abercrombie and Fitch and Chipotle. ICE has also arrested more employers, increasing from 92 in 2007 to 240 in 2012.12 Furthermore, arrests of employees have proceeded to fall.
According to an ICE official, the goal is compliance and deterrence, even though the majority of employer audits do not result in fines.13 Workers are less likely to hire undocumented immigrants if they know that ICE is likely to audit them. However, a December 2006 editorial in the New York Times argues that as long as there are jobs that fail to attract native-born citizens and there are no reasonable ways to legally migrate, employers will continue to hire undocumented workers, despite government sanctions.14
Who not to deport: DACA and DAPA
While President Obama has largely focused on deporting recent arrivals and criminals, there are also a number of undocumented immigrants, namely families of U.S. citizens, that the security agencies under President Obama’s watch have not attempted to deport. If the federal government does not want to spend a significant portion of its budget deporting undocumented immigrants, there are two options. The first is to simply not deport them. Until the 1990s, there were few resources dedicated to deportations, meaning few unauthorized immigrants registered on the federal government’s radar. Post 9/11, ICE has enjoyed access to more resources, and therefore decide to not deport someone who would require more purposeful action; ICE must decide at the onset that certain classes of immigrants are not a deportation priority.15
Whether someone is deported or not can sometimes be reversed through eventual bureaucratic means, so in order to target resources systematically, the government can proactively move to protect certain individuals from deportation. Deferred action is one method to do this. Three presidents—Eisenhower, Regan, and George H.W. Bush— have unilaterally protected groups of immigrants in this manner.
As for recent initiatives, President Obama has issued two controversial executive actions that granted temporary deportation relief for millions of undocumented immigrants. In June 2012, President Obama issued an executive memorandum that granted temporary legal status to immigrants who arrived in the United States before they were 16 and were under the age of 30, so long as they lived in the country continuously for 5 years, have not been convicted of a serious crime, have completed high school or earned a GED, or served honorably in the military for two years. Under the 2012 measure that was formulated, individuals who met these qualifications could apply for two-year work permits.
The authority for this action comes from the Immigration and Nationality Act, which gives the president substantial authority to decide who to deport. However, this program does not afford citizenship or permanent legal status. Rather, it is an act of executive grace that can be removed or bestowed at any time. Although not granting legal status, DACA recipients are afforded “lawful presence,” which allows individuals to apply for special drivers’ licenses in most states.
More recently, in November 2014, President Obama issued a second major immigration executive memorandum. It grants temporary protection to the parents of U.S. citizens and legal permanent residents for three years, as well as expands DACA protection for a period of three years, and eliminates the upper-bound age cap. In addition to this action, President Obama also announced several new immigration priorities. He emphasized the need for more exceptions for crimes committed directly as a result of unauthorized status. For example, an undocumented immigrant convicted of a felony for driving without a license will not be a priority for deportation. Additionally, President Obama explicitly defined “recent border crossers” as individuals who crossed the border as of 2014.
President Obama’s new initiative also attempts to scale back ICE field agents’ discretion. The initiative stipulates that agents are allowed to deport someone who has not been granted priority only if they “serve an important federal interest”—deporting someone simply for being unauthorized does not meet this criteria.16 Furthermore, this allows ICE agents to obtain approval if they want to deport a non-priority immigrant. Additionally, if ICE is attempting to deport the parent of a U.S. citizen, DHS headquarters can hold the field office director accountable because they are assumed to have signed off on the order.
Immigration Policies Under Obama’s Watch
President Obama has been in a relatively difficult situation when it comes to upholding immigration standards. While President Obama holds the record for the most deportations, the Bush administration left a legacy of mass deportations through the creation of ICE. Obama has been caught between appeasing legislative conservatives, who would respond very negatively if the deportation rate suddenly dropped in half, and by satisfying immigrant advocates. President Obama has noted his efforts to be smarter by focusing on deporting criminals instead of families; however, the DHS continues to deport more immigrants than ever.17
The recent executive orders, especially the initiative announced in November, attempts to reign in deportations of families and provide more guidance for the DHS and ICE. Nevertheless, it is regrettable that this guidance comes towards the end of his tenure as president. Obama claims he was waiting for congress to pass legislation before he would act unilaterally. However, it is not coincidental that he announced his second executive action after the midterm elections when the Democratic Party lost control of Congress.
There is a general consensus on the part of U.S. government officials, Washington experts and the population as a whole that the immigration system in the country is “broken” and that only congressional action is able to fix it. Deferred action is better than nothing, but it still leaves 11 million undocumented immigrants in limbo. Further, a lack of a reasonable legal immigration policy—some visa wait-times are as high as 70 years—encourages illegal immigration. Remember that President Obama cannot act alone to fix these problems. Congressional action is both necessary and highly unlikely, largely due to political reasons.
By: Nikki Hager, Research Fellow at the Council on Hemispheric Affairs.
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1 Immigration Policy Center, “Breaking Down the Problems: What’s Wong With Our Immigration System,” in Immigration Policy Center Special Report, on October 2009.
3 Marshall Fitz, Gebe Martinez, Madura Wijewardena, “The Cost of Mass Deportation: Impractical, Expensive, and Ineffective,” in The Center for American Progress, on March 2010.
5 Bipartisan Policy Center, “Interior Immigration Enforcement by the Numbers,” in Issue Brief, on March 2014.
6 Ibid. ; “ICE Enforcement and Removal Operations Report Fiscal Year 2014.” U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement. Published December 19, 2014.
7 Aarti Kohli, Peter Markowitz, and Lisa Chavez, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” in Rep. Berkley: Chief Justice Earl Warren Institute on Law and Social Policy, on 2011.
10Amy Sherman, “Obama holds record for cracking down on employers who hire undocumented workers, says Wasserman Schultz,” in Politifact, on July 2013.
14 “Swift Raids,” in New York Times, on December 2006.
15 Dara Lind, “9 facts that explain why Obama is about to help millions of immigrants,” in Vox, on November 2014.
17 Dara Lind, “Obama is deporting more immigrants than any president in history: explained,” in Vox, on April 2014.