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Policy Update: With Reform Stuck in the House, Pressure Increases on the President

March 28, 2014 - Posted by Josh Breisblatt

With the clock ticking on immigration reform in this Congress, House Republicans show no sign of bringing immigration reform legislation to a vote. Advocates, while still pushing House leaders to act, have begun to turn their attention to the president.

Since his State of the Union Address, the president has repeatedly promised to use his executive authority to do what he can on any number of issues that remain stalled because of congressional inaction. Immigration advocates—and some members of Congress—are urging him to use his executive authority to mitigate the suffering endured by families due to the broken immigration system.

President Obama has, up to now, maintained that he has limited authority to stop deportations. However, on March 14, the president met with reform advocates and told them he has ordered a review, in search of a more “humane” deportation policy. Possible changes being considered, according to press reports, include the easing or stopping the deportations of persons who have no criminal convictions other than immigration violations and a limitation on immigration detainers. Experts—including former ICE Acting Director John Sandweg—have proposed other shifts in policy that would help ease the burden on families.

Commentators say that such action by the president would spell the end of immigration reform, as Republicans in the House would take the action as proof that the president is not willing to enforce immigration laws. However, it is looking more like a chicken-and-egg situation. As one House Democratic aide put it to the National Journal:

    "At some point, this summer or later this spring, the prospects of Republicans actually doing something won't pass the laugh test. And the president is in a much freer position to do something that needs to be done."

That “something,” as James Oliphant of the National Journal put it, would be “a policy bomb that could be wired to detonate as early as this summer—right in the heat of the 2014 elections.”

House Votes to Limit Executive Discretion

On March 12, the House Republican leaders brought to the floor H.R. 4138, the “Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014 (ENFORCE the Law Act). If enacted, the law would limit President Obama’s ability to use prosecutorial discretion in enforcing the law by giving Congress the authority to sue the president if the House or Senate felt the law was not being properly enforced. The vote was 233 to 181 in favor of passage.

According to a statement by the House Judiciary Committee, the law is intended to prevent “the backdoor enactment of the Dream Act,” known as the Deferred Action for Childhood Arrivals program (DACA), among other actions. The Judiciary Committee report accompanying the legislation also cited prosecutorial discretion shown to parents and guardians of U.S. citizen children, and to parents, children and spouses of persons serving in the U.S. military.

A related bill, H.R. 3973, would require the Justice Department to notify Congress if the department establishes or implements a formal or informal policy of discretionary enforcement. That bill passed by a vote of 244 to 171.

While the bills have no chance of enactment, having been pronounced “dead on arrival” in the Senate by Senate Majority Leader Harry Reid (D-Nev.), they did reinforce the view that House Republicans are obstructing immigration reform. In a statement reacting to the vote, Maria Fernanda Cabello, of United We Dream (an advocacy group for undocumented youth), said that,
    “Speaker Boehner and his caucus engage in a “death by delay” strategy, coming up with an endless list of political excuses to avoid action. Now they’re moving in the opposite direction by once again seeking to undo the deferred action program that has protected hundreds of thousands of young immigrants like myself from deportation….”

Discharge Petition Filed for Immigration Reform Bill

On March 26, House Democrats filed a discharge petition for H.R. 15, the Border Security, Economic Opportunity, and Immigration Modernization Act. The bill, similar to the immigration reform bill that passed the Senate last year, is sponsored by nearly all House Democrats and a handful of Republicans. A discharge petition is a procedural maneuver that would bypass the committee process and House Republican leadership to force a vote on the House floor. A majority of members of the House (currently 217 due to vacancies) are required to discharge the legislation.

Such petitions are rarely successful, and in this case success would require more than a dozen House Republicans to set aside party loyalty and sign the petition. However, a discharge petition on immigration reform legislation will be a tool in keeping the pressure on House Republican leaders to act by highlighting their lack of action on immigration reform thus far. In a statement released on March 26, President Obama expressed support for House Democratic efforts on the discharge petition.

On March 25, the Congressional Budget Office provided its estimate of the effects of H.R. 15 on the federal budget and on the U.S. economy. The CBO analysis estimates that the bill would result in “a net reduction in federal budget deficits of about $200 billion over the 2015-2024 period and significantly greater amounts in the decade following 2024.” The CBO also noted in its analysis that, like the Senate bill, the House bill would have positive long-range effects on the U.S. economy.

New Acting Head of ICE Named

On March 17, Homeland Security Secretary Jeh Johnson named Thomas Winkowski to be Principle Deputy Assistant Secretary of Immigration and Customs Enforcement (ICE). In that capacity, he will serve as ICE’s acting leader. President Obama has yet to nominate a permanent replacement for the previous Director of ICE, John Morton, who departed last summer. Mr. Winkowski comes to ICE from Customs and Border Protection (CBP), where he was acting head of that agency until the confirmation of Gil Kerlikowske earlier this month.

Bills to Authorize ICE, CBP, introduced in the House

On March 21, Rep. Candice Miller (R-Mich.), Chair of the House Homeland Security Subcommittee on Border and Maritime Security, introduced H.R. 4279, the United States Immigration and Customs Enforcement Authorization Act. The bill lays out the duties of the agency and its top officers and offices.

Back in January, Rep. Miller introduced H.R. 3846, the U.S. Customs and Border Protection Authorization Act. This bill similarly lays out the duties of the agency and its top officers and offices.

Legislation that originally created the Department of Homeland Security, while incorporating the immigration functions of the government into the department, did not specifically authorize ICE and CBP, which emerged as separate entities after Homeland Security was established. Congress has funded the agencies through the appropriations process, but has yet to formalize the two entities. A hearing on the bills, as well as a third bill authorizing the U.S. Coast Guard that has not yet been released, is expected to be scheduled in early April, and will provide lawmakers opportunities to weigh in on the policies of these agencies.

Highlights of President’s Budget for Fiscal Year 2015 Available

On March 4, President Obama released his Fiscal Year 2015 proposed budget. The budget lays out the president’s spending priorities, and these will be modified when Congress puts its own stamp on the budget through the appropriations process in the coming months. The National Immigration Forum has prepared summaries of the immigration-related items in the budget. The summaries break down spending for various immigration-related programs and compare the proposed budget to what was actually enacted for the current fiscal year. There are two documents available on our website: one for the Department of Homeland Security and one for the Department of Justice.

Border Chief Issues Directive on Use of Deadly Force

At the end of February, the Los Angeles Times reported on an audit of the Border Patrol’s use of force. Out of the 67 cases examined by the Police Executive Research Forum (PERF), there were 19 deaths. The audit was critical of the agency for its “lack of diligence” in investigating complaints, and recommended changes in the agency’s use of deadly force policy. Among other things, the report cited examples of agents stepping in front of fleeing cars in order to justify shooting at passengers.

Despite calls from the organizations around the county the full report, which was completed in early 2013, has yet to be released to the public.

On March 7, Border Patrol Chief Michael Fisher issued a directive to his agents on the “Use of Safe Tactics and Techniques.” In the directive, Chief Fisher orders agents not to fire at fleeing vehicles unless there is a reasonable belief that the driver is trying to kill the agent or another person. He also says that agents should avoid putting themselves in positions where they have no alternative to using deadly force, and that agents should not fire at rock throwers unless the agent believed, “based on the totality of the circumstances,” that his life is in danger.

Advocates have complained for years about Border Patrol abuses and lack of accountability. On March 26, a new website was launched as part of an effort to increase Border Patrol accountability. is a collaborative effort of the American Immigration Council, the Northwest Immigrant Rights Project, the National Immigration Project of the National Lawyers Guild, and the ACLU of San Diego and Imperial Counties. The website tracks abuses and contains resources, including agency documents obtained under the Freedom of Information Act.

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