Top Ten Ways Obama Can Make Positive Steps Towards Immigration Reform Without Waiting for Congress
1. End DHS’s broad interpretation of aggravated felony which currently includes misdemeanors.
2. Require DHS attorneys to use more prosecutorial discretion in dismissing cases once evidence indicates the immigrant will prevail.
An example of this was a client of mine who sat in detention for 7 months because of a mandatory detention statute. After I won her case the attorney told me that he knew she would win once he saw her application 5 months prior but that he refused to dismiss because he wanted to “teach her a lesson.” The sentence for the crime she had committed was 15 days.
3. Reform detention practices to end detention of noncriminal immigrants.
4. Make a blanket grant of Deferred Action to certain classes of individuals.
A good starting place would be all children who would qualify under the DREAM Act that Congress failed to pass. This doesn’t convey status, but does at least mean the person can’t be deported while in deferred action.
5. Change guidelines to consider Temporary Protected Status an admission.
Individuals seeking to become Legal Permanent Residents without leaving the US, called adjustment of status, must have a valid admission or parole. Current USCIS guidelines do not consider the issuance of Temporary Protected Status an admission or parole meaning that even where people in the US on TPS have temporary status, they can’t adjust to permanent status. This leaves individuals who come forward to receive TPS in indeterminate status that could be taken away at will by the government, and unable to gain permanent status even if they are eligible based on family or employment.
6. Encourage broader use of Parole in Place.
This creates a parole, and would allow people eligible for Legal Permanent Residency but for the fact that they entered the US without documentation to adjust status. This would mostly help families where one of the spouses is a US citizen and would allow them to avoid a ten year separation, the penalty awaiting those who have to go abroad to get Legal Permanent Residency.
7. Change how the Secure Communities program is used so that ICE only issues a detainer after an immigrant is convicted of a crime.
This prevents individuals who are arrested but whose cases are later dismissed or they are judged not guilty to not be arrested by ICE. This allows ICE to focus on its stated priority of deporting immigrants who have committed crimes.
8. Stop criminally charging previously deported aliens criminally.
Immigration related prosecutions constitute approximately 60% of federal cases according to the Federal Public Defenders office. Federal resources are better spent finding current criminals rather than prosecuting immigration violators who are often simply trying to get back to their families.
9. Allow immigrants to enter into court proceedings where the immigrant believes they are eligible for relief that is only available through proceedings.
Some types of relief such as cancellation of removal for nonlegal permanent residents are available only by applying through immigration court. Where a person believes they would win this relief in court and wants to surrender themselves to ICE why should ICE look the other way?
10. Legalize Everyone.
Just go for it. If Congress refuses to compromise on immigration then show them you mean business by issuing an Executive Order allowing every immigrant in the US who doesn’t have papers to come forward, do a background check, pay a penalty, register, and receive employment authorization. You have the power Mr. President, wield it.
President Obama repeatedly states that he cannot make the changes immigrant advocates are calling for without the help of Congress. This is blatantly false. The Executive Branch interprets and enforces the laws that Congress passes and he has the power to determine how that happens. This blog is not the first place people have reminded Obama about his power to make changes independently of Congress. One such reminder came from his very own USCIS. In an unsigned draft memo, USCIS lays out clearly many of the points reiterated here regarding the positive changes the Executive Branch could make without waiting for Congress. It’s time for the President to stop passing the buck, and to demonstrate to Congress that he is well aware of his authority and he is not afraid to use it. It’s time for him to be a leader in this debate; Congress will catch up.