Radioactive Reform

It was one of those moments politician fear most. In a speech at this summer’s NCLR conference aimed at shoring up support among a key voting bloc, President Obama said he knew many Latinos wanted him to bypass Congress and change immigration policy on his own. He was about to say he had no constitutional right to do so when a group of immigrant students who are threatened with deportation stood up and cut him off.

“Yes, you can! Yes, you can! Yes, you can! Yes, you can!” the students, and then most of the audience, chanted.

A few weeks later, the Obama administration did something Latino advocacy groups, immigration lawyers and even some administration officials had lobbied strongly for: It decided to review hundreds of thousands of pending immigration cases and slow a rush of deportations. The new policy of prosecutorial review was embraced by advocates who had urged Obama to use his authority to change immigration law in the face of a Congress that considers action on the issue---short of punitive measures---to be politically radioactive. But those advocates want more, both from the White House and Congress.

“We think it’s an important step. But we’re going to monitor the implementation of it. And we still need to continue to work for the reform of our immigration laws,” said Laura Vasquez, immigration policy analyst at NCLR.

Rep. Luis Gutierrez, D-Ill., who traveled cross country this year trying to rally support for immigration reform, said he’s thankful for the president’s actions. “He had a huge credibility gap in the Latino community and this helps him tremendously,” said Gutierrez. “Is this enough? No. But it still delights me.”

Anti-immigrant hard liners blasted the new policy, saying prosecutorial discretion is an unconstitutional, backdoor attempt to grant millions of undocumented workers amnesty. Yet the Obama administration has been anything but soft on immigration enforcement. Since Obama assumed office in January of 2009 there have been more than a million deportations---a record amount. Criminals accounted for fewer than half of those deportees, and many of those criminals had committed minor infractions of the law.

Under the new prosecutorial discretion policy, announced in August, Federal officers involved in detaining and deporting undocumented immigrants would have to follow new guidance that prioritize deportations. That guidance says that before detaining or deporting an undocumented immigrant, a series of factors should be considered. Those include whether the immigrant has a criminal record, the length of time the immigrant has lived in the U.S., whether the immigrant came here as a child, has served in the armed forces, is studying at college or university or has U.S.-born children.

Raul Velasquez, 43, a Mexican immigrant who lives in Kyle, TX and is under deportation proceeding could benefit from the new policy. He has three U.S.-born daughters, has never been in trouble with the law and lived here for about 20 years.

“The president is doing the right thing because it gives hope to people like me who have no other recourses,” Velasquez said.

There’s evidence the new policy has already halted deportations. Velazquez’s attorney, Griselda Ponce, said it stopped the removal of another client, a Honduran woman in her mid-30s who was battered by her husband.

But there’s no guarantee Obama’s new policy will help Velazquez or hundreds of thousands of immigrants like him. It’s up to immigration judges and Federal agents to correctly interpret the new policy and carry it out. Leopold Davis, an immigration lawyer in Cleveland and a former president of the American Immigration Lawyers Association (AILA), said implementation of prosecutorial discretion is likely to be a “patchwork” system that helps immigrants in some cities and states and not in others. “The question is whether the agents in the field will actually implement it. The jury’s still out on that,” Davis said.

In addition, Homeland Security Secretary Janet Napolitano said an interagency panel of government lawyers will review 300,000 pending deportation cases to cull out the ones that meet the new guidelines. That’s only a fraction of the 1.6 million cases that are now pending.

And there’s still the Secure Communities policy, implemented during the Bush administration but broadened by Napolitano, which is one reason for the record number of deportations. This allows state and local law enforcement agents who arrest undocumented immigrant to report them to Federal immigration authorities.

The goal of the program was to deport “the worst of the worst” undocumented immigrants, those convicted of serious criminal and immigration offenses. But an AILA report showed dozens of immigrants were swept up into the dragnet for traffic violations and other minor infractions.

An ICE task force concluded the Secure Communities policy discouraged immigrant communities from reporting crimes. It said local police should turn in serious criminal aliens but leave others alone. “The bottom line is their report is saying ‘Secure Communities’ is not working,” Davis said.

Meanwhile, immigration advocates continue to push the Obama administration for more changes. Chief among them is to allow immigrant spouses of U.S. citizens or residents to remain in the country while their applications for legal status are considered. Under current law, these immigrants are forced to return to their country for years.

“Immigration law has an ‘extreme hardship’ clause that allows the president to determine some of the people in these marriages should not be split apart,” Gutierrez said. “We’re saying the administration should implement that clause.”

By Ana Radelat