Challenges Ahead on Implementing Executive Action to Prevent Deportation of Unauthorized Youth
By Muzaffar Chishti and Faye Hipsman
Migration Policy Institute
June 20, 2012
President Obama’s decision to protect from deportation and provide work authorization to certain unauthorized immigrants brought to the United States as minors — which represents the boldest immigration policy move of his administration — has generated considerable attention for its political implications. But while much of the focus has been on politics and legislative wrangling, less attention has been paid to the capacity and implementation challenges that ultimately will determine the scope and success of the administration initiative.
Those covered by the new policy (see box: Who Qualifies?) would have qualified for more permanent relief under the Development, Relief and Education for Alien Minors (DREAM) Act, which passed the House in 2010 but which the Senate ultimately blocked. Various versions of the DREAM Act, which would place certain unauthorized immigrants on a path to legal permanent residence if they met educational or military enrollment criteria, have been considered by Congress since 2001 but have failed to gain passage in both chambers.
The Migration Policy Institute (MPI) estimates that up to 1.4 million people would qualify for relief under the president’s order), with the largest share of potential beneficiaries residing in California and Texas.
Those who meet the criteria may be granted deferred action, a form of temporary relief from deportation that can be done administratively. The directive does not confer blanket status: determinations to grant deferred action will be made on a case-by-case basis. Those currently in removal proceedings, any qualifying immigrant who comes to the attention of immigration officials in the future, or those against whom a final order of deportation has been issued can have their cases reviewed by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officials. Those who meet the criteria, but have not been apprehended, can affirmatively apply for deferred action at US Citizenship and Immigration Services (USCIS) offices. Qualifying applicants will be subject to FBI background checks and those granted deferred action can apply for work authorization, which will again be reviewed on a case-by-case basis. Both deferred action and employment authorization would be granted for two years and subject to renewal under the administration’s action. As an administrative action, however, this policy could be terminated at any point and would not be binding on a future administration.
The large number of people who could qualify for relief under the policy presents significant implementation challenges that need be addressed:
The new policy, effective immediately, applies to those who entered the United States before the age of 16, were under the age of 30 as of the June 15 announcement, and have continuously resided in the United States for the past five years. They also must either be enrolled in school, have graduated from high school, obtained a GED, or been honorably discharged from the military or Coast Guard. In addition, they must not have been convicted of a felony, a significant misdemeanor, or at least three misdemeanors.
Capacity: Case-by-case review and determinations are a labor-intensive process that will require considerable staff capacity, especially for USCIS, which is expected to be ready in 60 days to process applications. Of the immigration agencies within the Department of Homeland Security (DHS), USCIS will have the largest workload. Already, the agency processes more than 5 million applications for immigration benefits per year. The two-step process — a grant of deferred action status, followed by a work authorization application — will only add to staff workload. Also, groups and individuals representing applicants (legal defense, advocacy organizations, etc.) will have to significantly increase their capacity to prepare necessary documentation, and advise clients of the consequences of applying, including the possibility of being placed in removal proceedings. Indeed, alerts have already been issued warning people of the possibility of fraud by unscrupulous or fraudulent service providers.
- Training and Supervision: Officers at ICE, CBP, and USCIS will have to be trained to adjudicate applications for deferred action and work authorization under the new criteria. Since there is no appeal process for deferred action and work authorization, there will be stronger need for appropriate supervision. There will be a particular need to ensure that disparate criteria for relief are not used in different jurisdictions around the country. Establishing clear agency guidance and a central oversight authority will be important to create uniformity in agencies’ decisionmaking.
- Outreach: Given the population affected by the new action (unauthorized immigrants living in fear of deportation), both the government and civil society groups will have to undertake a broad public relations and outreach campaign to inform potential beneficiaries of the eligibility criteria, incentivize them to apply and address their concerns about coming forward and identifying themselves to the government, and at the same time inform them of the potential consequences, if their applications are denied.
- Unresolved Issues: At this point, DHS has acknowledged that certain issues remain undecided, for instance, the question of how to define and verify continuous presence in the country, which is a qualifier for the relief offered. Documentation to demonstrate continuous presence will be a challenge for a younger population, many of whom lack bank accounts, rental or mortgage payments, or utility bills. Similarly, DHS has yet to define what a significant misdemeanor entails and has not resolved which of those denied deferred action will be placed in removal proceedings. Also, DHS has not determined whether those granted deferred action will be able to travel outside of the country and legally return.
The new policy announcement, occurring against the backdrop of a highly contested general election, was met with strong criticism from Republican congressional leaders — both on political and on legal grounds. They contend that the president overstepped his authority and usurped congressional power. Iowa Republican Rep. Steve King, a senior member of the House immigration subcommittee, plans to bring a lawsuit to block the new policy, House Homeland Security Committee Chairman Peter King (R-NY) said that his committee is “launching an immediate review,” Senator Lindsey Graham (R-SC) called the action “possibly illegal.” And Florida Senator Marco Rubio, who was readying a Republican alternative to the DREAM Act, issued a press release stating that the action is a “short-term answer to a long-term problem…that [ignores] the Constitution” and circumvents Congress. Rubio’s spokesman announced that the senator would abandon his efforts to introduce an alternative to the DREAM Act, saying the administration’s action undermined the urgency for a legislative solution.
Though Senator Rubio had not introduced a bill, the president’s announcement of a policy nearly identical to what the Florida Republican had outlined was seen by many as taking the initiative away from a rising Republican star and as an effort to court Hispanic voters, especially in key battleground states like Florida, Colorado, Nevada, and Virginia.
At the other end of the spectrum, many Democratic leaders, immigrant-rights groups, and the DREAMers (those who would have qualified under the original DREAM Act) themselves, rallied in support of the administration’s action. They view the policy move as a response to the needs of a population with strong equities: those who lack lawful status through no fault of their own, and who have demonstrated their potential to be contributing members of society. They also see the president’s action as an overdue initiative on a policy issue where Congress has repeatedly failed to act despite a degree of bipartisan support.
The administration contends its action does not require congressional approval because it makes no change to current law and does not confer any substantive right or an independent pathway to permanent resident status or citizenship. Instead, the executive action is being framed as an extension of the administration’s recent effort to exercise broadened prosecutorial discretion, as well as to direct its resources toward carrying out immigration enforcement actions against “high-priority” noncitizen targets: criminal aliens, public safety or national security threats, repeat immigration violators, and recent border crossers.
Similarly, the administration has set out the criteria for “low-priority” enforcement: those who have served in the US military, long-time US residents, immigrants who have US citizen or lawful permanent resident relatives, minors, and the elderly. The administration says that the new policy is consistent with these earlier prioritization directives.
Whether the new executive action is simply an extension of the president’s prosecutorial discretion policy or broader reform, it represents the first major opportunity for a sizeable segment of the unauthorized population to come out of the shadows and, by continuing their education and working without fear of deportation, realize transformative changes in their lives and futures.
Policy Beat in Brief
Second Lawsuit Against Arizona’s SB 1070 Moves Forward in US District Court. As the US Supreme Court draws near to issuing its decision in Arizona v. The United States, the federal government’s lawsuit against Arizona’s controversial SB 1070 immigration law, a second SB 1070 lawsuit, Friendly House v. Whiting, has gained momentum in US district court in Phoenix, Arizona. While the federal government’s lawsuit is primarily based on the grounds that the Arizona law is preempted by federal immigration law, the Friendly House case argues that the SB 1070 law will lead to discrimination and profiling, thus violating the constitution’s Fourteenth Amendment.
In May, U.S. District Judge Susan Bolton issued a ruling denying the state of Arizona’s motion to dismiss the case. She also dismissed the state’s request that the plaintiffs, which include individual immigrants, immigrant-rights groups, religious groups and nonprofit organizations, be denied class certification. If class certification is granted, any individual could join the lawsuit if they believe they will be harmed by SB 1070. If the key policing provision of SB 1070 is upheld by the US Supreme Court, Friendly House will likely become another vehicle to challenge it. However if the Supreme Court finds the provision unconstitutional, the current injunction against the law will become permanent, thus obviating the need for future challenges.
New Immigration Legislation Aimed at Highly Skilled Immigrants. The immigration bill Startup 2.0 has been introduced by bi-partisan groups of lawmakers in both the US House of Representatives and the Senate. The bill would eliminate the current diversity visa lottery system and transfer those visas to science, technology, engineering, and math (STEM) graduates. It would also create a new visa category for certain entrepreneurs, and would eliminate country caps for employment visas. Supporters of the legislation applaud the bill’s focus on innovation, jobs, and retaining top talent, and say that the measure will help drive economic growth, while critics of the legislation cite concerns that the new visa categories will displace American workers.
Use of Border Patrol as Interpreters in Washington State Ruled Discriminatory. On May 31, the Assistant Secretary for the US Department of Agriculture’s civil rights division, Joe Leonard Jr., ruled that the U.S. Forest Service discriminated against Latinos on the basis of race and national origin in northern Washington by using Border Patrol agents as interpreters and as law-enforcement support. The decision came in response to a complaint filed by a woman who was encountered with her partner by the US Forest Service on the Olympic Peninsula in May 2011. The Forest Service stopped the pair to make sure they held valid permits for picking salal, an evergreen used in floral arrangements, and also called the Border Patrol for back up. The complainant’s partner drowned in connection with the indecent while being pursued by Border Patrol agents. The ruling ordered the US Forest Service to conduct Civil Rights trainings for employees and establish new guidelines for serving populations with limited English proficiency.
DHS Expands STEM Categories Offering OPT Extension to More Graduates. The Department of Homeland Security announced an expanded list of science, technology, engineering and math degrees that qualify foreign students for a 17-month extension of Optional Practical Training status, which otherwise allows international students to gain post-graduation job training for 12 months. The newly designated degrees include pharmaceutical sciences, econometrics and quantitative economics, and represent a DHS effort to make it easier for US companies to attract and retain foreign talent from American universities. The new list updates a 2008 list by adding approximately 100 new qualifying degrees.
USCIS Reaches H-1B cap for FY 2013. US Citizenship and Immigration Services (USCIS) announced June 11 that it had reached the annual statutory cap of 65,000 H-1B visa petitions for employment starting in FY 2013. Each April 1, USCIS begins accepting petitions for the following fiscal year. For the FY 2012 program, the H-1B cap was met in November 2011, but for the FY 2011 H-1B program, the cap was not reached until January 2011. Prior to 2009, however, the cap was typically met within one week of April 1. The H-1B visa program enables US employers to sponsor highly skilled foreign nationals such as scientists, computer programmers, and engineers to work for up to six years.
USCIS launches Electronic Immigration Service (USCIS ELIS). In May, US Customs and Immigration Services (USCIS) implemented the Electronic Immigration Service (ELIS), an online tool that enables immigration benefits seekers to file Form I-539 online to extend, change, and reinstate status in student, exchange visitor, tourist, or business visa categories. The system is designed to provide applicants with a more efficient, user-friendly application process with improved customer service and case status information while streamlining the adjudication process. ELIS is scheduled to be expanded to encompass additional application capabilities and visa categories.
State and Local Policy Beat in Brief
Florida and California to Rule on Admitting Unauthorized Immigrants to the Bar. The Board of Bar Examiners in Florida and California have asked the supreme courts in each state to issue advisory opinions on whether unauthorized immigrants can be granted membership to the Bar and become licensed to practice law. The planned rulings stem from specific cases in each state. In Florida, where the high court recently deemed the matter ‘high profile,’ Jose Godinez-Samperio, a 25-year-old Mexican native and recent graduate of Florida State University College of Law, has already passed the Bar exam. He came to the United States 16 years ago with his parents on tourist visas, which have since expired. In California, Sergio C. Garcia was sworn in as an attorney last year but his admission to the bar is being reconsidered because he was found to be unauthorized.
Washington, DC City Council resists Secure Communities . City Council members in Washington, DC voted to limit the reach of Secure Communities in the District. Secure Communities, a program administered by US Immigration and Customs Enforcement, aims to identify removable "criminal aliens" when arrested or booked into custody by state or local law enforcement agencies. Under the program, when law enforcement agencies submit the names and fingerprints of arrestees to the FBI for background checks, that information is automatically screened for immigration history. Although jurisdictions can no longer opt out of the program, the council action would limit local law enforcement cooperation with federal authorities. Specifically, the bill instructs District officers to only honor ICE detainers issued on individuals who committed serious crimes and reduces the amount of time - from 48 hours to 24 hours - local jails will detain individuals that DHS intends to pick up. DHS plans to expand Secure Communities to all law enforcement jurisdictions nationwide by the end of FY 2013.
Alabama’s HB 56 Undergoes Set of Revisions . On May 19, Alabama Governor Robert Bentley signed HB 658, a bill aimed at “clarifying, simplifying, and improving” HB 56, Alabama’s strict and
controversial immigration law enacted in June 2011. The changes to the law were triggered by concerns raised in the business community and by many of the state’s lawful immigrants about the implementation of HB 56. In signing the bill, Governor Bentley expressed his concern about some provisions of the law, specifically one requiring the state to publish a list of unauthorized immigrants who violate state law, and another that mandates an inquiry into the immigration status of students - which was included in the original HB 56 and is currently enjoined by the federal government.
Supporters of Alabama’s amended law say that the revisions will ease some of the law’s unintended consequences while preserving its original purpose: to crack down on unauthorized immigration. Members of the immigrant advocacy community who criticize HB 658 have stated that the bill made Alabama’s immigration laws go from bad to worse, having failed to address its most controversial and harmful provisions.
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