Monday, February 18, 2013

Guest Post: Geoff Hoffman, President Obama's Vision of Immigration Enforcement …… and Now Reform


The implementation of our immigration laws has important effects on the make-up of our population and society. These laws act as a filter both in terms of exclusionary rules at the border and expulsionary rules in removal proceedings for those already within our borders. The vision of President Obama’s latest plan for comprehensive immigration reform has to be seen in this light. To understand the President’s plan (a pathway to earned citizenship, increased border security, increased penalties for employers hiring undocumented workers, greater streamlining of legal immigration) one must understand a bit about the history of immigration enforcement, as well as the President’s own track record. One must appreciate the President’s role as an “immigration enforcement-President” and also his Utopian aspirations, scope of vision, and underlying focus concerning our country’s composition and future.

In his first term, President Obama came under fire from the left and right. Most interestingly, the left issued initial grumblings and then outright denouncements concerning the President’s handling of immigration enforcement. It is no secret that President Obama has been most efficient, far more so than previous Republican presidents, in executing the immigration laws. In his first term, the numbers speak clearly: Obama deported a whopping 1.06 million well before the end of his first term, as of September 2012, in contrast to the 1.57 million in Bush’s two full presidential terms. In fact, a new report has just predicted that the Obama administration will have deported a new record of 2 million by 2014. See Mapping the Shift from Border to Interior Enforcement. It has also been reported that the Obama administration spent almost $18 billion on immigration enforcement last year, significantly more than its spending on all other major federal law enforcement agencies combined.

That President Obama is an “enforcement-President” will come as a shock to some given the roll-out in August 2012 of the Deferred Action for Childhood Arrivals (DACA) program, a possible reprieve from deportation for a select group of immigrants which had been announced in June 2012. However, this program does not diminish the record number of deportations or other policies of the administration. In particular, there are many indications that the President, in his rhetoric and more importantly by his actions, has cast the net wide in targeting people for deportation. Before DACA, the administration was under fire for its handling of Secured Communities (S-Comm), an information-sharing program, not a creature of legislation nor even regulation but solely executive action. Far from dismantling the program, as some on the left had urged, Obama got behind S-Comm and made it mandatory country-wide across all jurisdictions. S-Comm has been criticized as overinclusive; in response, the Administration and the agency implementing the program, DHS, attempted to mollify concerns with the new DACA program and guidance but the reality remains: make no mistake there are many, many people who either cannot prove their DACA eligibility or who clearly fall outside the DACA mandate, either because they are too old or they entered the U.S. too late. These people likely will be deported.

That brings us to the current state of affairs in the immigration universe: pre-reform, post-DACA, and now into his second term. The President’s plan to forge a bi-partisan consensus appears to have worked. Last week it was reported that GOP members of the House had signaled they would agree to a path to residency. A bi-partisan group of Senators have issued their own plan sounding close to the President’s “earned citizenship” but making the pathway contingent upon meeting as yet undefined benchmarks in increased border security. The important point is that the bona fides of an “enforcement –President” Obama by now should be largely proven and uncontested. Now, the real issue is what kind of population in the United States do we want going forward for the next 5, 10, 20, or 50 years. The factors which should be examined for immigration reform I submit must be self-consciously about fashioning the best possible society, for us, the undocumented, our economy, and our progeny.

What that means in simple terms, and I think President Obama agrees, is a system of reform which amply rewards good character and promise, on the one hand, and penalizes bad character and lack of promise on the other. The real difficulty for setting up such a system will be to allow it to appropriately navigate a course of compromise between these two extremes. If someone could invent a machine to accurately predict future human behavior, then such a machine could determine our immigration policy. Since no such machine exists as yet we need to embrace a system which goes beyond previous “legalization” regimes and allows for persons who have made a commitment to this country, either through military service, education, or paying taxes and work history. In the past we have provided a cut-off date which, if proven, would allow one to apply to adjust status; the new proposal goes beyond a mere cut-off date and provides correctly that “legalization” of status should hinge on the proven content of an individual’s character, his or her history, future goals: in short the role they will play in assisting our economic recovery and creating prosperity.

Considering immigration reform through such a prism forces us to think more deliberately about the goals and outcome of any immigration reform process. As the President’s and the current Senate bi-partisan proposal seems to promise, in broad strokes and currently ambiguous terms, there should be a pathway to earned citizenship based on completion of degree programs or through alternative means. The qualifying degrees however should not be limited to Science Technology Engineering and Math (STEM) alone, but should be more widely conceived to include all higher education degrees. There should be a good moral character requirement, but not one which is so onerous that it fails to forgive minor or youthful infractions. The requirements for legalization do not have to be tied to any benchmarks for border enforcement because those benchmarks have been met already by President Obama. We should choose a vision which rewards promise, either through proven commitment to education, military service, or social advancement. The future of our immigration policy is now within our grasp and we should all seize this opportunity to fashion it. Geoffrey A. Hoffman Director-University of Houston Immigration Clinic 100 Law Center Rm 56 - TU II Houston, TX 77204-6060 Tel: (713) 743-2094 Fax: (713) 743-2195 Email: NOTICE: This e-mail is from a law firm, University of Houston Law Center Clinical Legal Education, and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of the University of Houston Law Center Clinical Legal Education, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to the University of Houston Law Center Clinical Legal Education in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of University of Houston Clinical Legal Education, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality. This e-mail is confidential and may well be legally privileged. If you have received it in error, you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. Please do not copy it or use it for any purposes, or disclose its contents to any other person. To do so could violate state and Federal privacy laws. Thank you for your cooperation. Nothing contained in this communication or in any attachment shall satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Transactions Act or any other statute governing electronic transactions. This e-mail does not create an attorney client relationship.

Geoffrey A. Hoffman

Director, University of Houston Immigration Clinic

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