President Obama’s Failed Executive Action on Immigration and What To Do Next

President Obama’s solution—unilateral executive action to institute deferred action programs—was a misguided effort that did not tackle the problem of corruption and violence in Central America.

A Review of President Obama’s Executive Action and Why He Should Designate Central America for TPS

President Obama came into office on the promise of fixing immigration, though this has proved ambitious, and much easier said than done.

In November of 2014 President Obama took executive action in an attempt to offer a solution while Congress continued to deliberate an immigration bill. However, the President’s action was met with strong criticism from both sides of the political aisle.

Regardless of how Obama’s plan has been received in the political arena, his planned executive action wouldn’t have solved the real problem: immigrants fleeing corruption, violence, and poverty in Mexico, El Salvador, Honduras, and Guatemala.

What Did the President’s Executive Action Plan Involve?

President Obama’s ambitious plan to solve the immigration dilemma through executive action involved several components and initiatives aimed at making the immigration process more equitable and streamlined. However well-intentioned these initiatives may have been, they missed the mark, and remain an inadequate response to the problem.

Deferred Action for Children

First, the executive action called for an expanded role for the Deferred Action for Childhood Arrivals (DACA) program. Under this plan, anyone, regardless of their current age, who arrived in the United States before their 16th birthday, and has lived in the country continuously since January 1, 2010, would be eligible to take advantage of the program.

As a version of deferred action, DACA provides a way for individuals who would otherwise be candidates for deportation to avoid deportation and continue to reside in the United States, despite their otherwise illegal entry.

Deferred action is a form of prosecutorial discretion, allowing a decision to be made on a case-by-case basis not to pursue the deportation of an individual. Deferred action only establishes lawful residence, but does not provide any legal immigration status.

Deferred Action for Parents

Second, the plan would create a new program called Deferred Acton for Parents of Americans and Lawful Permanent Residents, or DAPA for short.

DAPA would allow the parents of United States citizens and permanent residents to request deferred action in order to avoid deportation, as well as work authorization for up to three years. In order to take advantage of this program, the parents would need to have lived in the country continuously since January 1, 2010, and be able to pass the requisite background checks.

Provisional Waivers

Additionally, the plan would allow the children and spouses of lawful permanent residents to make use of provisional waivers of unlawful presence.

These waivers would be used when the unlawfully present individual applies for a visa, but because of their unlawful presence in the United States, would otherwise have made themselves ineligible for a visa and inadmissible.

Criticism of Executive Action on Immigration

President Obama’s executive action and deferred action programs have faced a large amount of criticism.

From the Right

For the Republicans, any meaningful immigration reform needs to come from the legislature. Obama’s executive action imposes on Congress’s domain, and threatens the likelihood of successful immigration legislation coming out of that body going forward.

By taking this action prematurely, the president has destroyed any chance of real reform. As the real representatives of the American people, Congress is the only place where such far-reaching policy may originate. The president is not allowed to legislate, and this role is reserved exclusively for Congress as part of the separation of powers doctrine upon which this country was founded.

From the Left

This view—that Congress should be the one addressing immigration—is shared by many pro-immigration and progressive groups. For them, the president’s plan lacks legitimacy, and risks doing more harm than good for the situation of most immigrants. The simple fact is that in the American political system, real laws come from the legislature. If immigrants are to honestly see an improvement in their situation, any effort will need the legitimacy that can only come from congressional action.

From Immigration Lawyers and Immigrant Advocates

In reality, President Obama’s Executive action missed the mark. What the United States faces today with regards to immigration is a humanitarian crisis.

While pundits and politicians battle across the political spectrum on immigration, Central American families are broken, shattered, and destroyed on a daily basis.

While we believe the President’s DAPA program was legal, we can appreciate that it would operate in a bit of a legal gray area. Mainly, the President’s action confused those of us who work with U.S. immigration law on a daily basis because there is so much that the President has authority to do on the issue of immigration.

Below, we discuss one action that is clearly within the power of the executive branch. President Obama should move today to improve the lives of millions of immigrants and families living in the U.S.

The Obama Administration Should Grant TPS to El Salvador, Honduras, and Guatemala

In the immigration act of 1990, the U.S. Congress gave authority to the executive branch to provide Temporary Protected Status (TPS) to immigrants living within the the U.S. if conditions in their home country were unsafe.

All President Obama would need to do is direct the Secretary of Homeland Security to designate Central American nations for TPS. Congress gave him the authority to do so more than two decades ago.

On this issue, his hands are not tied.

Furthermore, action is necessary due to the border crisis and the inadequacy of other areas of U.S. immigration law.

Credible Fear and Border Enforcement

Many Americans believe our southern border is porous because so many immigrants are crossing our southern border.

But what most U.S. citizens don’t know is that even if the majority of the immigrants apprehended at the border approached the U.S. at an authorized port of entry, they would still be allowed to enter the U.S.

This is because our laws afford a person with a credible fear of returning to their country the opportunity to present their case before a judge who will determine whether that immigrant should receive asylum in the United States. So even if our Border Patrol officers apprehended 100% of all the hundreds of thousands of immigrants pouring across our southern border, the great majority would still be allowed to enter the country after a credible fear interview.

Why do our immigration laws allow this?

Because the United States of America still stands for hope and freedom. We believe that it is unjust to send a refugee back to a situation where they will almost certainly face torture and death.

Rationale for TPS

The problem with allowing these refugees into our country is that our existing immigration system was not built to handle this kind of volume. Some of the problems with our immigration system have more to do with capacity than laws on the books.

Our courts are backed up, and many of the refugees currently crossing over our southern border won’t have hearings for years. In the meantime they live in flux, waiting on a hearing about their case.

What’s worse is that most of these refugees, even though they have a credible fear of returning to their countries, won’t qualify for asylum.

Immigration judges have been narrowing the definition of asylum in the United States for years. The majority of refugees from Central America are fleeing gang violence. Because these refugees have difficulty convincing a judge that they fit into the shrinking definition of an asylee in the U.S.–a mental exercise that requires the refugee to define a “particular social group”–they won’t be granted asylum.

It’s ironic that most of these refugees are able to jump through the first hoop of U.S. asylum law–the credible fear interview–and gain entry to the country, while they will ultimately be turned away at the end of the process.

Instead of resolving the humanitarian crisis these immigrant face, we simply allow them to clog our immigration system and prevent our government from focusing on removing immigrants who fall into our deportation priorities.

The sheer volume of refugees from Central America is indicative of the scope of the problem in El Salvador, Honduras, and Guatemala. Central America is currently plagued by gang violence so intense that annual homicide rates are more than double the mortality rates that Central America has faced in the past during periods of natural disaster.

This aspect of the problem is part of the reason that immigration judges have been hesitant to grant asylum to these Central American refugees. The Board of Immigration Appeals has recently expressed that Temporary Protected Status is better equipped to resolve larger societal problems, such as widespread gang violence, than asylum law.

We agree.

Because asylum law is not the answer to the current crisis, the Obama administration should grant TPS.

Holding Central America Accountable

TPS is, by its very definition, temporary. While TPS should be granted to El Salvador, Honduras, and Guatemala, the U.S. should hold Central American governments accountable for improving conditions in their countries.

Central Americans living in the U.S. still love family members who remain in their home countries. Many of them send money to their families. This charitable behavior has the unfortunate side effect of encouraging the problem of gang violence and illegal immigration.

Remittances from the U.S. accounted for up to 17 percent of the GDP of Honduras in 2011. El Salvador and Guatemala are no different.

While Central American governments have made attempts to fight back against gang violence, these attempts have been short-lived, poorly funded, and half-hearted efforts to stop the problem.

And frankly, why should these governments stop gang activity when it only spurs emigration to the U.S. and pours more money into corrupt government coffers through remittances from the U.S.?

Any grant of TPS to Central Americans should come with the recognition that the U.S. must hold Central American governments responsible for ending the problem of gang violence. Only when Central Americans feel safe in Central America will immigrants stop pouring across our southern border.

Conclusion

There can be no doubt that the United States’ current immigration policy is broken and in need of fixing. Congress cannot take action soon enough to modify our existing laws.

President Obama’s solution—unilateral executive action to institute deferred action programs—was a misguided effort that did not tackle the problem of corruption and violence in Central America.

While many declared President Obama’s executive action as unlawful, there is no argument against the Obama administration’s power to grant TPS to El Salvador, Honduras, and Guatemala. Because of widespread conditions of gang violence and turmoil in Central America, President Obama should move to grant TPS.

 

 

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