With immigration reform stalled in Congress, the Obama Administration has taken to implementing reform through piece-meal exercise of executive discretion. While the humanitarian intent of the President's actions is laudable, the manner by which he has implemented reform raises numerous questions.
Movement toward reform began in June of 2011, when Immigration and Customs Enforcement (ICE), the agency charged with seeking the removal or deportation of illegal aliens, issued a memorandum with guidelines for the exercise of prosecutorial discretion. Much like how a police officer has the discretion not to arrest everyone the officer sees breaking the law, ICE's various Chief Counsel offices have the discretion, as the prosecutors of immigration enforcement, to choose which cases it will pursue through the Immigration Courts for removal.
Through the memorandum, ICE announced that it would concentrate its enforcement resources on certain aliens, such as those with a criminal record, while other aliens guilty only of illegal presence, could apply to the Chief Counsel's offices to dismiss their case.
Critics of the President charged that he was seeking amnesty of illegal immigrants, without congressional approval. In practice, many immigration attorneys have charged that the Chief Counsel's offices have not gone far enough, tending to offer prosecutorial discretion in only those cases where the Government was likely to lose in court.
A year later, in June of 2012, Homeland Security Secretary, Janet Napolitano, announced the Deferred Action for Childhood Arrivals (DACA) program for certain aliens who were brought to the United States before their 16th birthday, and who have either been schooled in the United States or honorably discharged from the U.S. Armed Forces.
Deferred action is merely a promise that the Government will not seek the deportation of an alien who is otherwise removable from the United States. Advocates note that DACA is only a half-measure, since it confers no legal status, and is not a path to permanent residency or citizenship. Indeed, under the DACA program, recipients must re-apply every two years. Nonetheless, the Government is authorized to grant employment authorization to successful applicants.
Critics charge that having failed to push the DREAM Act through Congress, which would have granted a path to permanent residency and citizenship along roughly the same lines as the DACA program, the President is circumventing the Constitution to implement many of the DREAM Act's provisions.
Most recently, on September 27, 2012, in a letter to U.S. Representative Jerrold Nadler, Napolitano announced that ICE would consider long-term same-sex partners to be U.S. "relatives" for the purpose of deciding whether to grant prosecutorial discretion. Whether an illegal alien in removal proceeding has a U.S. relative, such as a U.S. citizen or permanent resident spouse or child, is a positive factor ICE considers in deciding whether to exercise prosecutorial discretion.
This latest policy announcement is probably where the Administration is most susceptible to the charge of overreaching. With the Defense of Marriage Act still the law of the land, the U.S. Government is prohibited from granted green cards to foreign-born spouses of U.S. citizens or permanent residents, even if the couple were married in a state or country where same-sex marriage is legal. The move lends credence to the argument that the Obama Administration will ignore the Constitution when convenient to pander to certain constituencies. It also creates a sort of schizophrenia where the U.S. Government will recognize same-sex partners as relatives for some immigration purposes, but not for others.
The patchwork of immigration reform has been less than satisfying for some immigration advocates. Because the reforms are based on acts of executive discretion, and not on the passage of any law, the reforms are susceptible to change or even termination at the whim of the Administration. If Obama were to lose the election, there is also the question of whether a Romney Administration would continue with the programs, or use the information gathered to push for the removal of those who received discretionary relief. The reforms, then, fail to provide a permanent solution to the very aliens they help. In some instances, the reforms have been implemented unevenly.
True, meaningful reform must come from Congress, where it will have the force of law. However, with much disagreement over how to approach the presence of so many undocumented aliens in the United States, such reform is not likely to come soon.
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