Immigration Reform: Eyeing Election, Obama Acts Without Congress

When it comes to fulfilling his immigration promises, President Barack Obama is no longer waiting for Congress to act.

During his 2008 campaign, Obama helped to shore up his support from Latino voters by vowing to pursue comprehensive immigration reform and to establish a path to citizenship for some immigrants who were in the country illegally.

Those initiatives quickly took a backseat to early legislative battles over financial reform and overhauling the healthcare system. Obama doubled down on immigration enforcement, embracing controversial mechanisms instituted under the Bush administration as the rate of annual deportations climbed to a record high.

The enforcement-first approach was intended to win Republican support for a sweeping legislative fix, but that strategy essentially failed. The DREAM act, a piece of legislation that would have opened a path to citizenship for some immigrants who were brought to the country illegally as children, passed the House but foundered in the Senate amidst Republican opposition.

Obama has recast himself in preparation for the 2012 election, pivoting from compromiser-in-chief to a more aggressive posture of denouncing Republican obstructionism and enacting measures that do not require Congress' consent. That tactic has extended to immigration policy, with Obama presiding over a series of administrative changes to how immigration laws are enforced.

It's certainly clear from our perspective that that was a miscalculation on the administration's part to try and cultivate Republican support by emphasizing enforcement, said Jacki Esposito, director of advocacy for the New York Immigration Coalition. It doesn't seem as though restrictionist forces in Congress have any intention whatsoever to come to the table on immigration reform.

The administration announced on Friday that it would tweak the rules governing how undocumented spouses or children of U.S. citizens can apply for legal residency. Immigrants must return to their home countries to apply for residency through a citizen spouse or parent, but they are then barred by law from returning to the United States for three to 10 years; previously, immigrants seeking an exemption from that rule had to leave the country to apply for a special waiver. Under the new rule they can remain in America while applying for the exemption.

Immigration Advocates Favor Obama Administration Rule Change

Immigration advocates have praised the rule change as a common-sense measure that is well within the president's powers -- Douglas Stump, first vice president for the American Immigrant Lawyers Association, said in a conference call with reporters that the measure amounted to a mechanism for U.S. citizens to protect their families that did not represent a substantive change to existing immigration laws. But critics see the move as part of a broader administration strategy of circumventing Congress.

This announcement is just the latest installment of this administrative amnesty effort, said Mark Krikorian, executive director of the Center for Immigration Studies, an organization that supports lower levels of immigration. It is amnesty in the most tenuous sense, but nonetheless it's part of that same broad push.

Similar praise and condemnations have attended the administration's far more ambitious effort to reshape how immigration field agents, prosecutors and judges choose which immigrants to target for deportation. The shift reflects the administration's commitment to ensuring that enforcement is directed at immigrants with criminal records or repeat violators of immigration laws, rather than immigrants who are in the country illegally but have committed no crimes.

A memo issued by Immigration and Customs Enforcement Director John Morton offered the framework for the new policy by urging officials to use their prosecutorial discretion - essentially the ability to choose which cases to pursue - to focus on immigrants with significant criminal records and weigh factors such as family and community ties when considering whether to open or continue a deportation case. Homeland Security Secretary Janet Napolitano announced a review of some 300,000 pending deportation cases under the same criteria, a move that could indefinitely suspend thousands of deportations.

Mary Giovagnoli, director of the Immigration Policy Center, said that the Obama administration has long considered administrative fixes to immigration policy, even discussing the topic in transition team meetings prior to the president's taking office, but had emphasized a legislative approach instead. Some of the recent changes could shield Obama from criticisms that he failed to enact meaningful reforms as the number of deportations soared, Giovagnoli said.

One of the critiques of the administration is those numbers got as high as they did in part because they didn't use prosecutorial discretion to weed out the cases that didn't merit that heavy-handed approach, said Giovagnoli. So it might be they can point to these initiatives, particularly if they're effective, to say 'yes our numbers were high but we're doing some course correction.'

Critics of the new policy have portrayed it as a political move aimed more at mollifying voters than at improving enforcement. Chris Crane, president of the union that represents employees of Immigration and Customs Enforcement, testified to Congress that the shift had undermined enforcement by sowing uncertainty among agents and officers with regards to making arrests in the field. The union has so far barred members from participating in training for the new policy.

Law enforcement and public safety are no longer the priority at ICE, Crane told Congress. Politics are the priority at ICE.

While the economy is likely to dominate the 2012 presidential race, immigration remains a volatile and divisive issue. Texas governor Rick Perry saw his early polling lead swiftly crumble after he defended a decision to sign a bill extending in-state tuition to undocumented immigrants, and several states have seen tough new immigration bills challenged by the federal government. Obama's recent moves may energize some voters, but they could also expose him to accusations of overreaching or abusing executive powers.

As far as shaping the Republican message, it makes it a lot easier for the Republican candidates to go after the president on immigration because they don't have to be all that concrete necessarily. They can just say the president is acting lawlessly, Krikorian said.