Revising Obama’s ‘deporter in chief’ policy

By Herman Schwartz
April 8, 2014

In response to angry complaints from the Latino community about the administration’s deportation policies, President Barack Obama ordered a review in March “to see how to conduct enforcement more humanely.” At the same time, however, White House officials said the administration would neither suspend deportations nor expand the opportunities to stay for illegal immigrants who came to the United States as children.

That will not mollify his critics. Nor should it.

In a February speech, Obama had spoken movingly and from personal experience about the damage done to black and Latino young men by the loss of a father and the appallingly high number of fatherless homes.  Yet a month earlier, immigration officials had deported Josue Noe Sandoval-Perez. He “had been in the country for 16 years,” according to the New York Times,had no criminal record, paid taxes and was the primary breadwinner for his children – one an American citizen, the other [son] an immigrant who is here legally.”

In Obama’s five years in office, his administration has deported nearly 2 million undocumented immigrants, largely Latinos — reaching a new high of nearly 420,000 in fiscal year 2012. It took President George W. Bush his entire two terms to deport as many people as Obama has in five.

By one estimate, 200,000 parents of children born in the United States were deported between 2010 and 2012, and 5,000 children are now in foster care. Today’s policies are expected to put 15,000 more children into foster homes by the end of 2016.

After advocacy groups complained in August 2011, Obama announced that the Immigration and Customs Enforcement Agency (ICE) would focus on deporting serious criminals only — including those guilty of murder, rape, and drug trafficking. Yet, a New York Times study of 3.2 million deportations over 10 years shows that only 20 percent of the deportations involved serious crimes. The largest increase in deportations since Obama took office involved “illegal immigrants whose most serious offense was listed as a traffic violation” — from 43,000 such deportations during the last five years of the Bush administration to 193,000 during Obama’s tenure.

The Times also noted that “removals related to convictions for entering or re-entering the country illegally tripled” to more than 188,000. These convictions, the paper explained, prohibit “immigrants from returning for at least five years and exposes those caught returning illegally to prison time.”  Most of these deportees are men under 35 — many with families and children born in the United States.

Few who have dealt with the ICE and its predecessors are surprised. Immigration agents have often focused on the law enforcement aspects of their job. According to some critics, including law enforcement officials, ICE agents have even arrested and deported people on trumped-up charges — and the Obama administration has, so far, been uninterested or unable to change that culture. In fact, an unsuccessful suit by ICE agents challenging the “Dreamers” program, which allows young immigrants brought to the United States before age 16 and have graduated high school or served in the military, is pending on appeal.

Many deportations are the result of the controversial “Secure Our Communities” program instituted by the Department of Homeland Security,  of which the ICE is a part. This has led to deportation of tens, and perhaps hundreds, of thousands of  immigrants. In this program, local police assist immigration enforcement by checking the legal status of all persons arrested and detained in a local jail. The police then normally forward the detainee’s fingerprints to the FBI, even if no criminal charges are filed, and the FBI sends the prints to the ICE. New York, California, Massachusetts and several other states have refused to participate.

These deportations are a sword of Damocles over the heads of the roughly 11 million undocumented immigrants now in this country and the many millions more of their relatives and partners, who are citizens or here legally.

Illegal status also subjects these immigrants to exploitation by unscrupulous employers — for immigrants know that if they complain about anything, the employer can call the ICE and have them deported. Which is why Latinos, even those here legally, are often afraid to sign up for government benefits, including the Affordable Care Act (ACA), for fear that this will lead the ICE to undocumented friends or relatives.

For the same reasons, many Latinos don’t report crimes committed against them, including domestic violence, or cooperate with police investigations.

Legalization — with or without a pathway to citizenship — is thus the primary concern of the immigrant community.  A large majority of Americans (73 percent) also approve of allowing undocumented immigrants to stay here legally.

Obama insists that he has no legal authority to suspend deportations, but this is undercut by his own actions. He said the same thing at a 2011 Univision forum, but a year later, before the presidential election, he suspended deportation for the “Dreamers.” Then, in November 2013, the government decided to allow illegal immigrant children, spouses and parents of troops and veterans to apply for “parole in place” — granting them legal status.  His directive that deportation be limited to serious criminals was also an exercise of discretion.

There is no legal bar to the exercise of such discretion, as the president claims, because there is both judicial authority for this action, especially when exercised by agencies engaged with limited resources in some area of law enforcement, and a long history of discretion by such agencies. Indeed, the memo issued by ICE Director John Morton in June 2011 announcing the “serious criminal” policy contains 19 separate factors that may be considered in exercising the agency’s discretion, and there  is nothing new about most of these.

As the late Chief Justice William Rehnquist wrote 30 years ago, an “agency’s decision not to prosecute or enforce [a law] . . . is a decision generally committed to an agency’s absolute discretion.”

Some argue that suspending deportations will delay or impede such legislation. That’s extremely unlikely.

First, no matter what the president does, immigration reform looks unlikely this year.  House Speaker John Boehner (R-Ohio) has made that clear. During this election year, Boehner said, Republicans “plan to focus on exploiting the country’s dislike of Obamacare and disillusionment with Obama.

Earlier, however, before conservatives fought against it, Boehner had insisted there would be legislation — and drew up a set of principles so some reform might be in place before the 2016 presidential election. GOP leaders, like Republican National Committee Chairman Reince Priebus, are increasingly concerned about alienating potential voters.

Yet congressional Republicans continue to display hostility toward Latino immigrants. In early March, for example, the House Judiciary Committee voted to eliminate the public advocate for immigrants at immigration hearings. A week later, House Republicans overwhelmingly voted to limit presidential discretion on deportations in order to kill the “Dreamers” program.

The reason some Republicans might support reform, however, is to build support among immigrants — who now increasingly vote Democratic. Michael Steele, former Republican National Committee chairman, keeps warning his party that every month 60,000 young Latinos turn 18 — and become eligible to vote. By 2030, the Latino electorate is expected to double.

If Obama suspends deportations for a year or 18 months, this will likely increase the pressure on the Republicans for immigration reform, since it would bolster his standing with Latinos and Asian-Americans.

In addition, any plausible GOP presidential candidate will likely be faced with some very hard choices, which will help Democrats.  So Boehner could indeed pass some legislation acceptable to the Latino community before 2016.

If, however, Obama persists in doing nothing, Democrats will suffer. Not only in the midterm elections, where they are already in trouble, but in future elections as well. Many Latinos now believe the president can help them but won’t. If the deportations continue at the current rate, one recent poll found that 34 percent of Latinos and 29 percent of Asian-Americans will blame the Democrats and Obama.

Since the 2012 election, Obama’s approval rating among Latinos has fallen sharply, from 73 percent to 54 percent. Once-staunch allies have criticized him severely. Janet Murghia, head of the National Council of La Reza, who came to Obama’s defense while others were criticizing him, now calls him the “deporter-in-chief.”

Of course, Latinos and other immigrants are still unlikely to vote for Republicans because of their anti-immigrant policies. They are, however, very likely not to vote, which could be as damaging.

Obama’s response so far has been puzzling. He seems surprised at the anger of Latino and Asian-American immigrants. For example, at a recent town-hall meeting in Washington to rally eligible Latinos to sign up for Obamacare, the president seemed startled when told that his deportation policy had “tarnished” him among Latinos. He responded angrily, protesting that he was the “champion-in-chief” of immigration law reform.

Presidential aides have cited two concerns for not stopping deportations. First, that would feed into the House Republicans’ claim that they won’t deal with the president because they don’t trust him to enforce new border laws. Second, stopping deportations would further anger Republicans and block reform, since it would bolster their charges that he is acting like a dictator and subverting the Constitution.

But these are not the real “reasons.” Trust and anger have nothing to do with GOP opposition to reform — they have never trusted him and are always angry at him.  In order to gain Republican trust and support for reform, Obama has set a record in deportations, but that has obviously failed.

If they refuse to pass the necessary legislation, it will be because so many Republicans oppose immigration reform as a matter of principle (or prejudice — “they are not like us”) and because they don’t want to give Obama a victory, especially during an election year.

If immigration reform does pass, it will only be because sensible Republicans know they must do something to staunch the strong flow of Latino and Asian votes to the Democrats. Restricting turnout through voter-suppression measures like requiring strict voter ID and cutbacks in early voting may not be enough.

As for Obama’s being a “dictator,” just about every strong president is called that by an outmaneuvered opposition. Obama did invite this when he flaunted the power of his pen in his State of the Union speech.

Why the president doesn’t act to suspend most deportations remains mystifying. He is a compassionate man who knows from personal experience the tragic consequences of a broken, fatherless home. He knows both the political calculus and the law.

Whatever changes result from his immigration policy review, Obama must provide substantial relief — and soon. The immigrant community is not in a mood to tolerate anything less.


PHOTO (TOP): A girl wears a “Don’t Deport My Mom” t-shirt as she joins immigrants and activists, led by Service Employees International Union and CASA, on a march to urge Congress to act on immigration reform, on Capitol Hill in Washington, June 26, 2013. REUTERS/Jonathan Ernst

PHOTO (INSERT 1): Immigrants rights supporters rally outside the Immigration Customs Enforcement Northwest Detention Center in Tacoma, Washington, March 11, 2014. REUTERS/Jason Redmond

PHOTO (INSERT 2): People stand on the steps of the Citizenship and Immigration Services offices in New York, August 15, 2012. REUTERS/Keith Bedford

PHOTO (INSERT 3): Undocumented University of California, Los Angeles students prepare paperwork for the Deferred Action for Childhood Arrivals program in Los Angeles, California, August 15, 2012.  REUTERS/Jonathan Alcorn


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