#Not1More Deportation

Can President Obama Still Stop Deportations?

Photo credit: Diane Ovalle

Photo credit: Diane Ovalle

Questions & Answers on the Call for a Moratorium post-Supreme Court Decision

By: Tania Unzueta, Policy & Legal Director

After the 4-4 ruling from the Supreme Court of the United States failed to lift the injunction expanding the deferred action programs, President Obama stated in a nationally televised press conference that he did not expect further executive actions on immigration to be feasible before the end of his presidency.[1]

He stated that the only alternative is to pressure Congress to pass immigrant rights legislation and focus on getting a good candidate in the November election.

So, why are we calling for a moratorium on deportations from President Obama?

The basic answer is that there is more that he can accomplish, particularly in the realm of deportations, detention and general immigration enforcement, which has nothing to do with the scope of the Supreme Court decision. In support of this argument, below is a quick Q&A regarding the powers that the President could still use to respond to the call for a moratorium on deportations.


1.What does a moratorium on deportations mean?

A ‘moratorium’ on deportations would mean a temporary stop of immigration enforcement activities and programs, including removals (commonly known as deportations), by the executive branch to address the crisis caused by the country’s current immigration policies. The executive branch of the government, under the direction of President Barack Obama, has already taken several steps that show the range of immigration enforcement programs and tactics within its jurisdiction. [2] These powers go well beyond the deferred action programs and include enacting initiatives such as Secure Communities and the subsequent Priority Enforcement Program (PEP), defining the priorities for enforcement for the Department of Homeland Security (DHS), [3] and putting forward tactics such as immigration raids to detain immigrant families and children.[4] The enforcement-heavy PEP program and the focus on recent migrants as immigration priorities were announced on the same day as the President expanded deferred action, but have not been challenged in court and went into effect almost immediately.[5]

A moratorium on deportations calls on the President to re-evaluate, dial down, or preferably fully eliminate the executive branch’s considerable political and economic investment in immigration enforcement programs already under its jurisdiction, that criminalize immigrants and targets them for detention, criminalization, and incarceration.

2.Didn’t the court’s decision invalidate the President’s power to take action on immigration?

No. The Supreme Court was 4-4 split on the decision over whether states that brought the lawsuit would be affected by the President’s actions, and whether the granting of deferred action – which allows recipients to have work authorization – was too broad without going through additional notice and comment procedures.[6] However, the case did not result in a challenge to the federal government’s jurisdiction over immigration enforcement issues or the President’s executive power to expand, reduce, or shut down the immigration enforcement programs that it has invested in, such as the afore mentioned PEP and others.

Furthermore, there is still widespread support from legal experts[7] that the President has Constitutional authority to determine whether to enforce immigration laws as necessary, and to choose whether or not to initiate deportation proceedings.[8] This means that the President still has prosecutorial discretion to choose who will be targeted for deportation beyond the specific expansion of deferred action (a type of prosecutorial discretion) challenged in the Supreme Court. Actions that reduce the scope or eliminate deportation and detention programs and make good use of prosecutorial discretion would have an impact on failed current immigration policy.


3.What can the president do to respond to a call for a moratorium?

First, President Obama could put a stop to the home raids that have resulted in documented civil rights violations and have spread fear in immigrant communities.[9] Within government circles, the raids are known to be either part of ‘Operation Border Guardian,’ focusing on Central American families whose asylum requests were denied,[10] or the multiple operations focusing on people who have been previously incarcerated or had contact with law enforcement.[11] The immigration raids have been implemented by the Department of Homeland Security (DHS), a department within the Executive Branch, and defended by the White House.[12] Along those lines, he could also indicate that DHS use prosecutorial discretion to release the Central American youth who continue to be in immigration detention since the January raids,[13] and other migrants fleeing violence from their countries.

The second is pretty clear even to President Obama himself. On Thursday morning in his televised statement in response to the Supreme Court decision he explained, “Let me just be very clear. What was unaffected by today’s ruling or lack of a ruling, is the enforcement priorities that we put in place.[14]” Those enforcement priorities, as he continues to note in his statement, include people who have recently entered the United States, those who have been incarcerated, and people who have had interactions with law enforcement.[15] These priorities are the main justification for the immigration raids and enforcement activities. President Obama could still review these enforcement priorities, instead of defending them. For example, instead of stigmatizing immigrants who have had previous contact with the criminal justice system and putting them in further jeopardy, he could make sure that prosecutorial discretion is used to give immigrants second chances, as he has been fighting for within the context of criminal justice reform[16].

Third, the President could stop all programs that entangle local law enforcement and immigration enforcement, and give strong indication to DHS that it should stop working to coerce local governments to participate in these programs. This includes ending programs like PEP and the Criminal Alien Program (CAP), two programs that were started by the Executive Branch, and that have been challenged based on potential violations to the U.S. constitution, for being dragnets for indiscriminate detention, and the entanglement of local governments with immigration enforcement.[17] In the case of PEP in particular and its predecessor Secure Communities,[18] its reliance on police and Sheriffs who are suspected or proven violators of human and civil rights in certain localities, such as Maricopa County in Arizona[19] or Chicago, Illinois has been questioned.[20] The President could also indicate that DHS should stop pressuring local governments to participate in these programs, as exemplified by a recent visit from DHS Secretary Johnson to Philadelphia, one of the few cities that has refused to participate in the program.[21]

Fourth, the President could stop defending the erosion of the few rights that immigrants have in detention centers.[22] Four days before the DAPA decision, the Supreme Court announced that it would be taking up a case exploring how long immigrants who are detained only for immigration violations can be incarcerated in a detention center. The case had already been decided in the 9th Circuit Court, indicating that immigrants had a right to a regular review of their case via a bond hearing. The Obama administration is pushing against this decision asking the Supreme Court to overturn it, arguing effectively for fewer rights for immigrants who are detained.[23]

These four are not exhaustive, by far. The Black Alliance for Just Immigration put out its five priorities yesterday, which include taking a stand against the 1996 laws that criminalized millions of immigrants, pardoning thousands of immigrants across the U.S. who have been deemed deportable by using clemency, cancelling contracts with private prisons and corporations, closing all federal prisons and detention centers, and ending entanglement between police and immigration enforcement.[24] The National Day Laborer Organizing Network also called for an end to PEP, and a grant of Temporary Protected Status (TPS) to Central American families fleeing violence in their home countries.[25]

In addition to these, we could look back at the Not1More Deportation Blue Ribbon Commission report, one of the most exhaustive list of recommendations for executive action out there. [26] Of the fourteen recommendations published right before the announcement, the President has only attempted to do the first: the expansion of the deferred action program (albeit, not “to the fullest extent of the law”). The other recommendations in the report, which goes into detail of why these are powers that President Obama has, include: Protecting basic rights by granting deferred action to individuals filing civil, labor or human rights complaints; eliminating the bed quota and curtailing the use of immigration detention; improve conditions for vulnerable detainees, including pregnant women, HIV positive and transgender individuals; expand the use of humanitarian parole to reunite families; end Operation Streamline, a border program that convicts immigrants in mass solely for immigration violations; end the expedited removal of youth eligible for Special Immigrant Juvenile Status; and get Customs and Border Protection to adopt prosecutorial discretion guidelines.

The conclusion is that there are wide-ranging actions that the President could take that would still be within his power legally, that he could do before the end of his presidency, and that could go a long way towards decreasing or ending deportations and answering the call from immigrant communities on deportations.


4. Why is a moratorium justified now?

President Obama has publicly said that part of the strategy behind harsh immigration enforcement tactics was to pave the way for relief from deportation or immigration reform. Over the course of his presidency he has deported over 2.5 million people.[27] After eight years of record-breaking deportations, the return of home immigration raids, and the continued criminalization and detention of immigrants, and no significant relief programs beyond the very limited Deferred Action for Childhood Arrivals.

The least the President could do is commit to ending the deportation programs that continue to terrorize, criminalize, separate and incarcerate our communities. The ask for a moratorium is not new, and it tends to be used when the laws are falling behind what the political and social context require, and that is still true.[28] Most recently a group of political science and sociology professors called for a moratorium on deportations in response to the January 2016 immigration raids, where they state, “A moratorium on deportations is sound action that President Obama can take independently of the current obstructionist Congress, and it is the only decent, fair, and humane way forward.[29]


5.Shouldn’t the real, permanent solution come from Congress?

It is true that President Obama has limited powers when it comes to providing relief for undocumented immigrants, and that an executive action can be done and undone by who ever is President. There are many parts of immigration reform and immigration enforcement that fall within the jurisdiction of the U.S. Congress such as determining the amount of funds that detention and deportation agencies receive every year and enacting wide-ranging policies like immigration legalization programs. It’s worth noting that the enforcement programs that are causing the most damage to immigrant communities are not likely to be discontinued through a comprehensive immigration reform bill if past proposals serve as indicators of future content.[30] Actually, the most recent Comprehensive Immigration Reform proposals have included increased resources and power for agencies responsible for immigration enforcement and deportation.[31] Congress is also the body that could repeal the 1996 laws which increased deportations of people with low-level offenses, many of whom did not get to see a judge; decreased power of defenses against deportation; facilitated prolonged detention of immigrants in detention centers; and created procedures to fast-track immigrants without seeing a judge.[32]

But there is also a long history of back-and-forth between Congress and the Executive branch in responding to social crisis that, some legal theorists argue, helps maintain a balance of power and helps move policy and social issues forward, particularly when one governmental body is blocking progress.[33]

In addition, there is no evidence that proves that if the President takes steps towards a moratorium on deportations there would be less willingness by Congress to tackle immigration reform.[34] Immigrant rights advocates have argued that in addition to providing more immediate – albeit temporary – relief, a moratorium could be the first step towards permanently changing and improving the immigration system.[35]

[1] https://www.youtube.com/watch?v=-NbY7vLdgFI
[2] http://www.yalelawjournal.org/article/the-president-and-immigration-law-redux
[3] https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf
[4] http://www.reuters.com/article/us-usa-immigration-deportation-idUSKCN0Y429P
[6] http://www.immigrationpolicy.org/just-facts/understanding-legal-challenges-executive-action
[7] http://www.huffingtonpost.com/prerna-lal/strong-yearend-executive-_b_5872586.html
[8] United States Constitution, Article II §1
[9] https://www.splcenter.org/20160128/families-fear-atlanta-immigration-raids
[10] https://www.dhs.gov/news/2016/03/09/statement-secretary-jeh-c-johnson-southwest-border-security
[11] http://fusion.net/story/316432/immigration-raids-midwest-2016/
[12] http://www.businessinsider.com/r-immigration-raids-part-of-long-planned-action-white-house-2016-5
[13] http://www.notonemoredeportation.com/portfolio/iceraidsyouth/
[14] https://www.youtube.com/watch?v=-NbY7vLdgFI
[15] http://www.huffingtonpost.com/marisa-franco/are-criminal-justice-reforms-and-immigration-policy-at-odds_b_8361768.html
[16] https://www.whitehouse.gov/blog/2016/05/05/nation-second-chances
[17] http://immigrationpolicy.org/special-reports/enforcement-overdrive-comprehensive-assessment-criminal-alien-program
[18] In 2001 the Congressional Hispanic Caucus called for a moratorium on Secure Communities, http://www.ccrjustice.org/home/press-center/press-releases/congressional-hispanic-caucus-calls-moratorium-secure-communities
[19] http://www.salon.com/2010/07/16/immigration_safe_communities_obama/
[20] http://fusion.net/story/316432/immigration-raids-midwest-2016/
[21] http://www.newsworks.org/index.php/local/philadelphia/93387-after-meeting-with-homeland-security-chief-kenney-stands-firm-on-philly-sanctuary-city-status
[22] http://www.politico.com/blogs/under-the-radar/2016/06/immigrant-jail-detention-supreme-court-224537
[23] http://www.politico.com/blogs/under-the-radar/2016/06/immigrant-jail-detention-supreme-court-224537
[24] http://www.truth-out.org/opinion/item/36551-five-immigration-actions-obama-should-take-before-leaving-office
[25] http://ndlon.org/en/pressroom/press-releases/item/1212-day-laborer-network-reaction-to-president-obama-speech
[26] The Commission was made up of experts in the field, including many undocumented and formerly undocumented immigrants as part of the Not1More Deportation Campaign and the National Day Laborer Organizing Network, in November 2014, http://www.notonemoredeportation.com/2014/04/10/not1morebrc/
[27] http://fusion.net/story/252637/obama-has-deported-more-immigrants-than-any-other-president-now-hes-running-up-the-score/
[28] http://www.yalelawjournal.org/article/the-president-and-immigration-law-redux
[29] http://www.huffingtonpost.com/leisy-j-abrego/instead-of-mass-deportation_b_8941892.html
[30] http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill
[31] http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill
[32] The Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-Terrorism and Effective Death Penalty Act of 1996, See http://www.immdefense.org/fix-96-end-mass-criminalization-immigrants/
[33] http://www.yalelawjournal.org/article/the-president-and-immigration-law-redux
[34] http://www.yalelawjournal.org/article/the-president-and-immigration-law-redux
[35] http://activism.thenation.com/p/dia/action3/common/public/?action_KEY=10548