Immigration Accountability Executive Actions Overview and Analysis

RESOURCES:

LIRS Resources:
LIRS Action Center
November 20, 2014 PRESS RELEASE — Lutheran Immigration and Refugee Service Responds to New Immigration Policies Announced Today

White House Resources:
FACT SHEET: Immigration Accountability Executive Action
HOJA INFORMATIVA: Acción ejecutiva de responsabilidad por la inmigración
FACT SHEET: The Economic Benefits of Fixing Our Broken Immigration System

Department of Homeland Security Key Facts on Executive Action:
Fixing Our Broken Immigration System Through Executive Action – Key Facts

U.S. Citizenship and Immigration Services Resources:
USCIS Next Steps, Key Questions and Answers, and Glossary

U.S. Department of Justice Resources:
The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
in the United States and to Defer Removal of Others

Updated on November 24, 2014

PDF version available here

On November 20, 2014, President Obama announced executive actions intended to resolve some of the broken components of our current immigration system. These changes are known collectively as the “Immigration Accountability Executive Actions.” As described below, the revisions to immigration policy undertaken by the President are multiple and potentially far-reaching.

I. Core Components of the Immigration Accountability Executive Actions include:

Creation of Deferred Action for Parents (“DAP”) of U.S. Citizens and Lawful Permanent Residents: Extending deferred action to these parents will provide protection from deportation and work authorization for three years for an estimated 4.1 million undocumented adults who:

    • Have children of any age who are United States citizens or lawful permanent residents (LPRs)
    • Have lived in the United States since January 1, 2010
    • Pass a background check
    • Pay an application fee of $465

Qualified individuals will be able to apply for DAP 180 days from the November 20, 2014 announcement.

LIRS response: We gratefully welcome and support the President’s decision to extend deferred action to the parents of U.S. citizens and LPRs. The belief in the unity of family is a core American value and one of the guiding principles for LIRS. Families living together without the constant fear of deportation are more stable and self-sufficient than those split apart or living in fear of forced separation due to one or more family member’s lack of valid immigration status. Without the stress of possible separation, these families can more fully focus on continued contributions to their communities and congregations. Those parents who did not formerly enjoy work authorization can now experience the pride and protections of providing for their families within the safeguards of our workforce. Deportations of DAP-eligible individuals should be immediately suspended.

Expansion of Deferred Action for Childhood Arrivals (“DACA”): Expanding the existing DACA program will provide protection from deportation and extend renewal and work authorization for three years to an estimated 270,000 individuals who:

    • Are currently any age
    • Entered the United States as a child before January 1, 2010
    • Pass a background check
    • Pay an application fee of $465

Qualified individuals will be able to apply for this relief 90 days from the November 20, 2014 announcement.

LIRS response: We welcome and support the President’s decision to expand deferred action to more individuals who came to the United States at a young age. In many cases, these children came seeking reunification with family members. LIRS believes strongly in upholding the sanctity of family unity. We welcome the President’s action to stabilize the status of thousands of people who live in our communities, worship in our churches, and call America home. While the Executive Action does not provide these men, women, and children with a permanent right to stay here, LIRS believes that migrants who have lived in our families and communities since they were children should be free from worry about deportation, free to focus on their studies, attaining skills and contributing to the communities they call home.

Ending Secure Communities: Secure Communities is a program whereby state and local jails cooperate with the Department of Homeland Security to identify individuals in their custody who are eligible for deportation. It has sparked widespread community concerns and judicial scrutiny for due process violations. Under Secure Communities, even if charges are dropped or the person is acquitted of a crime, ICE often initiates deportation proceedings after a “hit” in the system. This program led to mistrust among law enforcement and local communities resulting in diminished safety for everyone, especially for undocumented victims of crime who grew afraid to seek police help. Many who work in law enforcement opposed the program. Further, statistics demonstrated that Secure Communities did not target the most serious offenders for deportation. In fact, the vast majority of people identified as a result of Secure Communities were arrested for less serious crimes, including traffic offenses.

Secure Communities will be discontinued and replaced by a new “Priority Enforcement Program” (PEP). This new program also seeks to identify deportable individuals in law enforcement custody, but will lead to immigration enforcement actions against only those individuals who pose a threat to our communities and includes accountability and transparency measures.

LIRS response: We are pleased that the flawed Secure Communities program is ending and that the replacement program seeks to address many of its faults. We hope that by discontinuing Secure Communities, immigrant communities need no longer fear deportation as a result of seeking help from law enforcement agencies. Our hope is that the elimination of Secure Communities and the creation of the Priority Enforcement Program is part of a broader shift to more careful and just enforcement of immigration laws.

Recalibrating DHS-wide Immigration Enforcement Priorities: The Department of Homeland Security will soon prioritize enforcement efforts to focus resources more fully on those individuals who actually pose a risk to the safety of our community and away from contributing members of our families, communities, and congregations.

New guidance directs resources to national security, public safety, and border security threats. It also instructs immigration officials to consider positive equities in making enforcement decisions. This new guidance goes into effect on January 5, 2015.

DHS will be required to exercise prosecutorial discretion broadly and at various points. Discretion should be utilized in decisions to

    • initiate removal proceedings
    • apprehend, detain, and release,
    • appeal immigration court rulings;
    • and decisions to effect a deportation.

Unless they are subject to mandatory detention requirements under current immigration law, vulnerable individuals (serious physical or mental illness, disabled, elderly, pregnant or nursing, or primary caretakers of children or those not in the public interest) should not be placed in detention under these new priorities.

LIRS response: We are encouraged by the Administration’s plans to tighten its enforcement priorities rather than seeking to detain and deport our friends, family members, co-workers and neighbors who are integral members of our communities. If this latest effort to prioritize enforcement efforts is implemented broadly, fairly, and consistently, the government will save valuable resources and avoid the devastating consequences of detention and deportation for migrants and refugees who came to the United States seeking only protection, family unity, or a better future.

Strategic Border Security: The Administration will continue to secure our borders by deploying currently available resources. A new organizational strategy will be implemented within 90 days.

LIRS response: LIRS supports the Administration’s goals of protecting our country from those who wish to do us harm. We are also proud of our nation’s history and reputation as a protector of liberty and provider of justice. We believe that the Administration currently has sufficient resources directed toward our border security. We would encourage the Administration to ensure protection and respect for human rights at the border by ensuring our international obligations to identify asylum-seekers and detain only those migrants who are found through an individual assessment to pose a threat to our national security.

Immigration Court Reform: The Department of Justice is announcing a package of immigration court reforms that will address the current backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet new DHS-wide enforcement priorities and close cases of individuals who are low priorities. The Department of Justice will also pursue regulations that adopt best practices for court systems to use limited court hearing time more efficiently.

LIRS response: LIRS is pleased with any action that will increase the justice available to migrants and refugees. We support the government’s steps to more expeditiously adjudicate cases and alleviate the crushing backlogs in immigration courts. For the tens of thousands of men, women, and children in immigration detention each day, delays in court dockets mean additional loss of liberty. For those who came here seeking protection from persecution, adjudication may mean the long-awaited ability to reunite with family members currently waiting in danger abroad. Further, wiser allocation of judicial resources is sure to improve immigration court procedures and adjudications.

Supporting New Americans: The Administration will deepen support for integration by creating a White House Task Force on New Americans to create a federal strategy on immigrant integration.

LIRS response: LIRS welcomes the renewed effort by the Administration to allow newcomers to fully integrate into our communities. A coherent national approach to integration is badly needed, and will help strengthen both newcomers and receiving communities. Migrants and refugees bring their talents and gifts to our country, yet limited welcome and support can result in lost opportunities. Since 1939 LIRS has worked to ensure that newcomers are connected and contributing members of their adopted communities in the United States. LIRS resettles tens of thousands of refugees into U.S communities each year, and we stand ready to offer useful knowledge for such a national integration effort. The engagement and leadership of immigrant and refugee communities will be essential for the success of this effort.

Expanding Provisional Unlawful Presence Waivers for Families: Allows some undocumented individuals to seek waivers to immigration bars that otherwise result in forced separation or continued undocumented status. This waiver process allows more individuals to seek a waiver before departing for visa interviews at a U.S. embassy or consulate abroad. It is expected to shorten the time individuals are separated from their family members as their visas are processed. This action also directs the issuance of additional guidance about satisfying hardship criteria.

This is available to individuals who:

    • Require a waiver for unlawfully residing in the United States
    • Are a spouse, son or daughter of a U.S. citizen; or the spouse, son or daughter of an LPR
    • Demonstrate that their separation would impose an “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent

LIRS response: Our current immigration laws often lead to harsh and inhumane consequences, such as lengthy separation of spouses from each other and/or parents from their children. By expanding the current waiver process, thousands of family members of LPRs can seek to remain united with their family instead of having to choose between immigration status and family unity.

II. Additional components of the Immigration Accountability Executive Actions include:

  • Increased Availability of Visas and Parole for Highly-Skilled Applicants
  • Modernization of Employment Visa System
  • Improvements to Worksite Enforcement Operations
  • Personnel Reform for Immigration and Customs Enforcement Officers
  • Immigration Relief for Relatives of U.S. Citizens and Lawful Permanent Residents Enlisting in the Military

III. Needed Reforms Missing From these Executive Actions include:

Ensuring Protection of Unaccompanied Migrant Children
Under the new border strategy, DHS will prioritize enforcement of all recent arrivals—including children and families seeking refuge. The announced plan fails to include a robust protection and humanitarian response to vulnerable migrants such as children arriving at our borders alone. We are disappointed that steps were not announced to ensure greater due process protections for children who currently face expedited immigration court proceedings.

Ending the Inhumane Practice of Family Detention
The President’s announced reforms do nothing to end the troubling and expanding practice of detaining mothers and children for immigration purposes, the majority of whom are fleeing violence in Central America. There is simply no humane way to detain families and it is time to stop the practice and return to our nation’s proud tradition of providing welcome and protection for those seeking refuge. LIRS will continue to encourage the Administration to reexamine and end this inhumane practice.

Extension of Deferred Action to Parents of Deferred Action for Childhood Arrivals
While these actions do grant temporary status to some parents of U.S. citizen children and LPR children, it noticeably excludes parents of children who have already benefited from deferred action, also known as parents of DACA recipients. These parents will not receive the same protections and therefore will continue to live under threat of deportation and family separation. While we are encouraged that most of these parents will not be high on the government’s new enforcement priority list, we are troubled that these parents remain at risk for deportation.

IV. Frequently Asked Questions

Is this truly good news?
Yes. If current estimates are correct, over four million individuals will be temporarily relieved of worry about separation from family and more fully able to participate in our communities. The number of impacted people who are members of the beneficiaries’ families, neighborhoods, and churches is many times larger. We also expect to see a welcome decrease in the deportation rates of upstanding, hard-working, long-time residents of the United States.

Did the President Have the Legal Authority to Take These Executive Actions? A President cannot make new laws. However, President Obama clearly has the authority to prioritize enforcement, defer enforcement action, and use prosecutorial discretion. He does not have the authority to create new pathways to permanent legal status or citizenship and has not attempted to do so.

Every President, from George Washington to Barack Obama, has issued executive orders in one form or another. For example, President George H.W. Bush took executive action in 1990 to grant deferred action and work authorization to roughly half the undocumented population in the United States at the time.

In addition, Department of Justice lawyers concluded the President has legal authority to deprioritize deporting certain unlawfully present immigrants and defer the removal of others. Historically, both Congress and the Supreme Court have also expressly acknowledged a President’s authority to defer enforcement action, prioritize enforcement, and utilize prosecutorial discretion.

Is there a financial cost or benefit associated with these Executive Actions?
We expect there to be an overall financial benefit to these actions. Some of the Executive Actions are cost-neutral. For instance, fees associated with applying for newly created deferred action programs will cover the costs of increased personnel and other resources needed to administer the programs. Other Executive Actions will boost the economy through issuance of new employment visas. The guidance setting forth enforcement priorities is intended to redirect resources in a more efficient and effective manner, resulting in cost savings. For example, there is a high cost to detaining individuals. Each exercise of discretion not to detain results in financial savings. Finally, family disruption due to detention and deportation often creates an additional drain on our economy.

Do these actions solve the issues associated with the arrival of unaccompanied children and families from Central America?
No. Children and families arriving from Central America are fleeing violence and persecution. While fewer have arrived at our borders in recent months, there are credible reports that this is due in large part to individuals being stopped at the southern and northern borders of Mexico or along their migration route. Until the root causes of the violence are addressed in the region, migrants will continue to flee and seek safety. We must continue to ensure that these vulnerable men, women, and children have access to protection and justice, and are treated with dignity and compassion.