In Executive Action on Immigration, Obama Must Reform Enforcement Policies

On June 30, President Obama announced that his administration would take executive action to reform the current, broken immigration system, charging Homeland Security Secretary Jeh Johnson and Attorney General Eric Holder with moving resources to the border and identifying – before the end of the summer – additional actions that his administration can take.

Administrative changes could have far-reaching implications for millions of immigrant families. The Leadership Conference on Civil and Human Rights is calling on the president to include certain reforms in any action he takes, including reforming immigration enforcement policies.

The administration should do more to ensure that immigration officials apply common sense in all cases. Many immigrants do not qualify for DACA or other broad forms of affirmative relief, so the government should still do more to use “prosecutorial discretion,” where officials look carefully at individual cases and stop deportations that do not serve the public interest.

Some ways to improve existing Department of Homeland Security (DHS) policies governing prosecutorial discretion include:

• ensuring the prosecutorial discretion memoranda – issued by former U.S. Immigration and Customs Enforcement (ICE) Director John Morton and his predecessors – apply to all of DHS, not just to ICE;
• creating a presumption of hardship for people with ties to the country;
• applying deferred action with work authorization (not just administrative closure) to compelling cases;
• giving timeframes for the grants of discretion, in order to provide recipients with some stability;
• evaluating the use of prosecutorial discretion at each stage of the enforcement process, so that new information can be considered;
• treating some requests for prosecutorial discretion in groups; for example, workers in certain labor situations;
• ensuring agency compliance with memos governing victims and sensitive locations cases;
• and establishing a review process at DHS headquarters.

The administration must also reduce the use of deportations without hearings since, just in FY 2013, more than 260,000 people (70 percent of those deported that year) were deported through “expedited removals” or “reinstatement of removal,” which are fast-track procedures with no hearing before an immigration judge. It’s critical to end the use of deportations without hearings for people who have a case for relief or for prosecutorial discretion and for people who agree to a stipulated removal and were not represented by counsel. The administration should only use these procedures for people caught at a port of entry or while trying to enter (which was DHS policy before 2004), and it should provide some kind of appeal process.

It is also critical for the administration to address human rights and to prevent abuses near the border. Among other things, the administration should end the Operation Streamline program; it should implement the recommendations on the use of force from the Police Executive Research Forum to ensure greater oversight and accountability; roll back the U.S. Customs and Border Protection’s (CBP) claimed 100-mile authority; equip all CBP officers with lapel cameras; and provide more humanitarian resources such as rescue beacons and water stations along the dangerous border region.

Obama’s announcement on June 30 came more than a year after the Senate passed a bipartisan immigration bill (S. 744), which House leadership has refused to bring up for a vote. More than a month earlier, The Leadership Conference sent a letter to Obama outlining steps he should take on his own regardless of the Senate bill’s fate in the House.

This is the second in a series of four articles detailing what The Leadership Conference wants to see in President Obama’s executive action on immigration, due out later this summer.