Policy Update: Washington Waits for Midterm Elections

Director of Policy and Advocacy

October 22, 2014

Presidents Decision to Delay Executive Action Creates Electoral Challenges

In early September, the President announced he would delay any administrative action that would mitigate the failure of Congress to enact immigration reform, providing relief for families being split apart by deportation. The rationale given by the President was that the Central American child refugee crisis has affected the timeline for an announcement on executive action. Mr. Obama told NBC on September 6,

“I want to spend some time, even as we’re getting all our ducks in a row for the executive action… (and) make sure that the public understands why we’re doing this, why it’s the right thing for the American people, why it’s the right thing for the American economy,” Mr. Obama said.

Democratic Senators Urge Obama to Hold Off

Leading up to the decision to delay administrative action, several Democratic incumbent senators and senatorial candidates in Republican-leaning states—among them Kay Hagan of North Carolina, Mark Pryor of Arkansas, Mark Begich of Alaska, Michelle Nunn of Georgia and Alison Lundergan Grimes of Kentucky—had been urging the president to hold off on taking action. They feared such a move would harm their electoral chances. In those states, the Latino electorate is relatively small and Latino turnout has lagged other sectors of the electorate. Democratic senators Bill Nelson of Florida, Al Franken of Minnesota, and Independent Angus King of Maine (who caucuses with Democrats) also expressed concerns.

Resistance from these Senate Democrats followed a turn in public opinion on immigration since the Central American refugee crisis began, with an uptick in the percentage of Americans favoring a focus on border security.

Senator Mark Udall of Colorado has stood out as one of the few Democratic incumbents calling for administrative action on immigration while facing a tough reelection fight race. Latinos make up a significant proportion of Colorado’s voting-age population – expected to comprise at least 10 percent of the electorate – and Udall is counting on Hispanic support to help him prevail.

Attacks on Administrative Action Continue

The decision to delay administrative action has not staved off Republican attacks on immigration. In reaction to the president’s announcement, House Speaker John Boehner released a statement said that “the decision to simply delay this … unilateral action until after the election – instead of abandoning the idea altogether – smacks of raw politics.” Republican senatorial candidates, as well as the Republican Senatorial Committee, continue to attack Democrats for supporting Obama’s “executive amnesty.” (See, for example, this political attack ad created by the “Kentucky Opportunity Coalition,” a group supporting Senate minority leader Mitch McConnell.) Republicans are preparing their options, should Obama act after the elections.

Advocates Angered; Latinos Disillusioned

After promising in June that he would receive his team’s recommendations for administrative action by the end of the summer and would act “without further delay,” the president’s decision to further delay action angered advocates.

The delay also risks alienating Latino voters, and media reports indicate that, while groups normally engaged in voter registration drives among Latino eligible voters are urging Latinos to flex their electoral muscle, they are having difficulty generating interest. Obama’s approval ratings among Latinos, already declining prior to his announcement, have diminished further. Latinos surveyed by Latino Decisions in June said they would be less enthusiastic about voting if the president did not take administrative action on immigration.

Most of the states where Senate seats are in play are Republican-leaning with relatively few Latinos. Still, with races tightening in several states, it will be interesting to see whether Latinos set aside their disappointment with Democrats, turn out to vote, and make a difference in one or more states.

It Doesnt Get Easier

Speaking at the Congressional Hispanic Caucus Institute’s annual gala on October 2, President Obama said he will act between the mid-term elections and the end of the year. For a variety of reasons, however, including an upcoming budget battle (see below) and the possibility that the upcoming elections will deliver the Senate to Republicans, an announcement of administrative action on immigration post-election may be no easier.

Should Republicans gain control of the Senate, we can expect that any immigration legislation that might be drafted in 2015 will focus on boosting border security as well as increasing immigration enforcement in the interior.

Flow of Central American Unaccompanied Minors Abates

The number of unaccompanied minors apprehended at the U.S. border continued to decline in September, totaling 2,424 by the end of the month verses 10,600 in June. Before it left on its 2 1/2-month recess, Congress failed to provide more resources to deal with the crisis.

Legal Assistance for Central American Children in Deportation Proceedings

Ordinarily, a person in immigration proceedings is not entitled to legal representation at government expense. Whether or not an individual in deportation proceedings has legal assistance has a significant impact on the ability of the person to remain in the U.S. Back in July, a lawsuit was filed against the government for failing to provide legal representation to children in deportation proceedings. According to analysis by the Transactional Records Access Clearinghouse (TRAC), 48% of children appearing in court to determine whether they should be sent back to their country appeared alone without the assistance of a lawyer. Of those, only one out of ten were allowed to stay. By contrast, of those who were represented by a lawyer, five in ten were allowed to remain in the U.S.

At the end of September, the U.S. Department of Health and Human Services announced it would grant $9 million over a two-year period for legal representation for this particularly vulnerable population. Initial grants totaling $4.2 million are being awarded to the U.S. Conference of Catholic Bishops and the U.S. Committee for Refugees and Immigrants to provide legal services in nine cities. (These are add-on grants to the two organizations, which already receive funding related to their refugee resettlement work.) On September 10, a memo to immigration judges from Brian O’Leary, the Chief Immigration Judge, made it clear that judges have discretion to grant continuances so that, among other things, the minor may find legal representation.

In addition to the federal funding, California will provide $3 million for legal aid for unaccompanied minors, in addition to the $2.1 million San Francisco separately voted to provide. New York City is also providing $2 million for legal assistance to unaccompanied minors.

Despite Positive Data on Court Appearances, DHS Plans More Detention Facilities

Thus far, the vast majority of unaccompanied minors—most of whom are released to relatives in the U.S. pending their deportation proceedings—as well as the overwhelming majority of adults with children, are showing up for their court appearances, according to the Wall Street Journal. Those who are represented by an attorney are more likely to make their court dates.

Despite the positive data on court appearances, the government continues to expand family detention centers. On September 22, Immigration and Customs Enforcement (ICE) announced that it would open and operate an additional detention center for adults with children in Dilley, Texas. According to the release, the South Texas facility will be the fourth facility the agency is using to increase capacity to detain and expedite the removal of adults with children.

Advocates have been critical about the Artesia detention facility in New Mexico, and have filed suit over the treatment of mothers and children at that facility. The Karnes Residential Center in Texas has also been plagued with problems, and on September 30, a complaint was filed alleging sexual abuse and harassment in that facility. Given the poor record of these family detention facilities, the administration’s decision to open yet another one was panned by advocates. The National Immigration Forum released a statement saying that it made little sense for ICE to reverse its earlier efforts to phase out family detention. A statement from the ACLU expressed extreme disappointment “in the administration’s decision to dramatically expand the warehousing of vulnerable mothers and children fleeing violence in Central America.”

The new detention facility in Dilley is expected to open in December, according to ICE.

Some Central American Minors Will Gain Refugee Status

On September 30, the administration released its Proposed Refugee Admissions for Fiscal Year 2015. The administration is proposing to provide access to refugee resettlement through in-country processing in Honduras, El Salvador and Guatemala for unmarried minor children whose “lawfully-present qualifying relatives” in the U.S. request access to a refugee interview for the child.

Human rights advocates have a number of concerns with this proposal. While it has the potential to save lives, in-country processing exposes the applicant to a continuing threat while his or her application is reviewed—a process that may take many months. Experience with in-country processing includes misuse of the program—when U.S. authorities, for example, discourage a potential asylee by pointing out that refugee processing is available in the country from which the person fled. In any event, there are only 4,000 refugee resettlement slots available for Latin America and the Caribbean region, and most of those slots in recent years have been used to resettle Cubans.

DHS Launches Haitian Family Reunification Parole Program

On October 17, DHS announced that it was launching the Haitian Family Reunification Parole (HFRP) Program to promote and expedite family reunification for Haitians who have family members legally residing in the United States and have already been approved for a family-based visa. Under HFRP, eligible beneficiaries currently residing in Haiti will be able to come to the United States and receive work permits up to two years before their immigrant visa priority dates become due.

Congress Fails Yet Again to Complete Appropriations Process

After a five week summer recess, Congress adjourned in mid-September after a two-week session. They will not return until after the November election. (In for two weeks, out for two months.) As has become the norm in recent years, Congress failed to complete the appropriations process by the end of the government’s fiscal year, September 30.

Continuing Resolution Provides Some Flexibility to Pay for Crisis Response

Instead, it passed a short-term “continuing resolution” that will continue funding government programs at fiscal year 2014 levels through December 11. By then, Congress will have to either pass a funding bill for the remainder of fiscal year 2015 (ending September 30, 2015) or pass another short-term bill to avoid a government shutdown just before Christmas. Minority Leader Mitch McConnell (R-KY) indicated he would like to pass an omnibus spending bill during the “lame duck” in order to give Senate Republicans a clean slate when starting the new Congress.

During its brief session, the administration renewed a request for supplemental funds to pay for the government’s efforts to respond to the humanitarian crisis on the border. Congress ignored the request.

Instead, it granted the administration some of its desired funding flexibility for Customs and Border Protection and Immigration and Customs Enforcement in order to “maintain staffing levels, border security operations, detention space, and immigration enforcement activities.” Appropriators specified a funding level sufficient for a minimum of 21,370 Border Patrol agents, and a 34,000 detention bed quota (not requested by the administration).

Congress did not give the administration funding flexibility for the Justice Department’s Executive Office for Immigration Review—the immigration courts—to handle the increased caseload resulting from the influx of Central American minors and families.

The bill almost derailed in the Senate, when a procedural move by Senators Jeff Sessions of Alabama and Ted Cruz of Texas to get the Senate to consider amendments on “executive amnesty” failed on a 50 – 50 vote.

Coming Lame Duck Session May See Little Drama and Little Accomplishment

According to a report in Politico, there may be little drama in the coming lame duck session, which will start in mid-November. The main order of business will be to pass a funding bill that will carry the government through the remainder of the fiscal year. There also may be a slew of confirmation votes over the next months including the confirmation of Sarah Saldana to head ICE and the confirmation of an Attorney General nominee to replace Eric Holder. However, depending on the change in power after the elections, another temporary spending measure may be all that will pass in December.

Positive News from the States

With the prospects of a national solution to fixing the immigration system being kicked to a future congress, states continue to take the lead in accommodating their immigrant population.

More Jurisdictions Refuse to Honor Immigration Detainers

The number of counties that are deciding not to honor ICE immigration detainers except in limited circumstances continues to grow. In recent weeks, news reports have noted that (among others) 22 Iowa counties are now refusing immigration holds without a court order. Officials in Douglas County, Nebraska (which includes the state’s largest city, Omaha), have decided they will no longer honor ICE holds. On October 7, Montgomery County, Maryland, officials said they would no longer honor ICE immigration hold requests unless the agency can demonstrate the person has likely committed a crime.

A series of federal court rulings have held that immigration holds are not mandatory and local jurisdictions cannot be compelled to honor them. Honoring the holds amounts to an unconstitutional deprivation of a person’s liberty without a showing of probable cause that the person has committed a crime. Since these rulings, the number of local law enforcement agencies that have decided not to honor ICE holds now tops 225.

Welcoming Cities

In honor of Citizenship Day, more cities announced steps to attract immigrants and to be more welcoming to new Americans:

  • On September 17, the Mayor of Baltimore, Stephanie Rawlings-Blake, released a report compiled by the city’s New Americans Task Force, with recommendations for attracting immigrants to the city. The Mayor is seeking to attract 10,000 new families to the city over the next decade, and making the city more attractive to immigrants will help achieve that goal. The report contains 32 recommendations on economic growth and community well-being.
  • In Atlanta, also on September 17, Mayor Kasim Reed committed to implementing 20 recommendations proposed by the city’s Welcoming Atlanta Working Group. The recommendations focus on community engagement, “developing and harnessing talent” and public safety.
  • Also on September 17, the mayors of New York, Los Angeles, and Chicago launched an initiative called “Cities for Citizenship.” The intent of the initiative is to help immigrants become citizens by expanding naturalization programs and taking other steps to reduce barriers to naturalization—by, for example, offering micro-loans to help cover the cost of the naturalization application. In conjunction with the launch of the initiative, a new report was released calculating the economic benefits accrued in the three cities once immigrants become citizens.
  • On September 22, Nashville, Tennessee, created a Mayor’s Office of New Americans, which will focus on “involving immigrants in local government, expanding economic and educational opportunities and creating partnerships” between the city and community organizations.

While no substitute for federal efforts to reform immigration laws, the actions being taken by cities and states do have an impact, and they will grow, with or without congressional action.

Developments at Federal Agencies

BIA Decides Domestic Violence May Serve as Basis for Asylum Claim

On August 26, the Board of Immigration Appeals reached a decision allowing the asylum case of a woman from Guatemala to move forward. The BIA decided that the woman was a “member of a particular social group” facing persecution, composed of “married women in Guatemala who are unable to leave their relationship.” This decision clears the way for victims of domestic abuse to apply for asylum in the U.S. when their governments are unable or unwilling to protect them.

FY 2013 Removals at All-time High

In September, the Office of Immigration Statistics released its report, “Immigration Enforcement Actions: 2013.”According to the report, the administration removed 438,421 persons in Fiscal Year 2013, an all-time high. Of those, nearly a third (31.3%) were removed for immigration violations. Expedited removals (removals without a hearing before an immigration judge) represented 44% of all removals. Detentions during the year were down from the year before. Ice detained 440,557 during the year.

CBP Gets Authority to Investigate Criminal Misconduct

On September 18, DHS announced that Customs and Border Protection (CBP) will be delegated authority to investigate its employees for criminal misconduct. Going forward, CBP will have the authority to investigate allegations of criminal misconduct referred to it by the DHS Inspector General’s office. In addition, CBP will be implementing a unified, formal review process, based on FBI best practices, for use of force incidents. The moves are in part a response to previous revelations that CBP’s reactions to allegations of the use of excessive and deadly force have been inadequate.

CBP to Test Body Cameras

In September, it was reported that CBP will begin testing body cameras on its agents. The testing was set to begin in October at training facilities in Artesia, New Mexico and Harpers Ferry, West Virginia. The step is one of many in recent months announced by Commissioner Kerlikowske in an attempt to create more transparency and accountability within an agency that has been criticized for years by NGOs.

Military to Allow Some DACA Recipients to Serve

In September, the Department of Defense announced it will expand a program known as Military Accessions Vital to National Interest to allow certain DACA recipients to serve. The program targets foreign nationals for recruitment if they possess skills in high demand by the military—usually rare foreign language expertise or specialized health care training. For a variety of reasons, opening this program to DACA recipients is likely to affect very few individuals.