Blog

I do not intend to give a comprehensive discussion of the Presidency of Barack Obama.  I am only writing on the one issue that I have true expertise on: immigration.  From all of the articles I have read, the conversations I have had, I know that a discussion of President Obama’s record on immigration will provide plenty of controversy, such that there is no need to get into any other topic.

The case against Obama is strong: record numbers of deportations, failed legislative action, an apparent unwillingness to fight restrictionist fire with fire, the debacle that is Secure Communities.  There is no doubt that these factors are a tremendous disappointment.  We had such high hopes with a young and idealistic (or so we imagined him to be) President who had engaged the immigrant community and Democratic control of both houses of Congress.  The stage seemed set for some form of comprehensive immigration reform.  But then came the economy, Rahm Emmanuel, and health care and immigration went to the back of the line.  It is reasonable to conclude that Obama sold the immigrants out.  And now he needs the Hispanic vote.

Despite these clear problems, I intend to vote and campaign for the President.  My reasons are simple.

First, I have over a dozen clients who have received discretionary stays, deferred action or otherwise favorable treatment from immigration that was unthinkable before.  These people are largely DREAMers, those who would benefit should Congress pass the DREAM Act.  In the absence of Congressional action, the administration has quietly allowed hundreds, if not thousands, of DREAMers to remain in the U.S. with employment authorization.  The expansion of the discretionary authority known as deferred action has been remarkable and was unthinkable under previous administrations.  I remember the turning point.  It was July 2009 and we were doing one of the first DREAM Act deferred action requests.  It was down to the wire and the client needed to depart the U.S. if discretion was not exercised in his favor.  Shortly after submitting the request for deferred action, I got the Miami Field Office Director of ICE on his cell phone.  He spent 15 minutes yelling at me, asking me who did I think I was, and didn’t I understand what an order of removal meant.  He told me that he would have to look at the case not only of my client but of his family, who did not have removal orders.  An hour later, Senator Bill Nelson’s office called me and told me that deferred action had been granted.   Thirty minutes after that I received a letter signed by the same Director granting deferred action.  I was unable to get him on the phone, but it is clear that the earth had moved under his feet and he only realized it when the political appointees in Washington let him know that it was no longer business as usual.  Now, deferred action for DREAMers is pretty routinely granted.

Some DREAMers and their advocates have asked the President to announce a formal blanket-wide grant of discretion to the DREAMers and have used his reluctance to do so as proof that he is committed to lip service only.  I consider that wise politics on the President’s part.  A formal blanket-wide grant of deferred action would have been a direct challenge to Congress and invited even more controversy over whether the President is abusing his power to override U.S. immigration law.  It would have been a major talking point for the Fox News crowd and would have kept every immigration official testifying on Capitol Hill for weeks.  In addition, it would have placed a layer of notoriety on what is essentially a de facto situation.  I have heard some argue that, despite the rhetoric, the President is deporting DREAMers.  I suppose this is true.  One can not expect ICE to identify these folks on their own.  In my experience when ICE is alerted that a potential deportee falls within the very broad outlines of what is a DREAMer, favorable discretion is usually exercised.

I recently obtained deferred action and stays for DREAMers that expire after the next election.  I am worried about what is going to happen to them.  I do not believe that a Romney administration will extend their discretionary status.  These kids have no other legal options.  What happens to them if the President is not re-elected?  While their situation is far from perfect and the hope is that some form of the DREAM Act or immigration reform will pass, their ability to remain in the US with their families and to work and study is dependent upon continued administrative grace that has been exercised by this administration.

A second reason I am supporting this President is because I believe that he wants common-sense immigration reform.  His failure to achieve it says more about the poisonous state of political affairs where every piece of legislation requires sixty votes in the Senate and the Republican opposition has made it clear that they see their job as to thwart the President on every initiative he brings forward.  The DREAM Act failed with 55 votes in the Senate.  Five democrats voted against it as did 36 republicans.  While the five democrats that voted against it should be excoriated, the enmity that has flowed to President Obama when 52 out of 57 democrats voted for the Act is senseless when it was the other party that demanded the filibuster and provided the overwhelming opposition.  So-called moderates like Olympia Snowe and Susan Collins, previous supporters like Orrin Hatch, and finally, the inscrutable Marco Rubio all had a hand in bringing down the DREAM.  The failure of the DREAM Act is not the President’s fault.  It is the fault of a party captive by its most extreme anti-immigrant elements.

In addition, the President has taken several steps to liberalize the immigration process.  The administration has mandated that ICE officials consider whether their actions are consistent with the stated enforcement priorities of the agency.  This has resulted in the termination of removal proceedings for hundreds of people and has allowed many people to have an easier time seeking benefits. While more remains to be done in the discretionary realm (it takes a long time to turn a cruise ship around), the process has caught the attention of courts, which are now placing pressure on the government to exercise its discretion in cases before them.  The administration has unleashed this and one has to be pretty dim to think that they did not foresee these consequences.  In addition, the administration has also proposed changes to the waiver process that would allow people to seek waivers in the U.S. before traveling abroad and facing a lengthy stay abroad.  This step has the potential to provide residence to thousands of people without Congress lifting a finger.  Also, the Board of Immigration Appeals has become less hostile territory to the immigrant than it was before.  Many new appointees are beginning to have an impact and the Board’s recent decisions allowing for Judges to close cases over DHS objection and to hold the unlawful presence bar inapplicable to adjustment applicants who left on advance parole are enormous advances that will allow for more people to obtain status or protection without Congressional action.  Finally, the President has forcefully challenged hateful anti-immigrant statutes in Arizona, Alabama, and South Carolina.

Many challenges remain.  There are disappointments with this President, for sure.  However, this is not a race between Barack Obama and our vision of the perfect immigration President.  It is between President Obama and Mitt Romney.  Over the past year, Giovernonr Romney has staked out the most anti-immigrant position in the Republican field.  He has allied himself with Kris Kobach, the architect of SB 1070 and the other state laws.  He has promised to veto the DREAM Act.  In addition to the Governor’s own words, the Republican party has adopted the position of extreme anti-immigrant demagoguery.  This view of the world will be ascendant of Governor Romney wins.

One thing I have learned over the last five years is that Obama plays the long game.  He sees many moves ahead and while many folks on his team panic and jump ship, Obama steadily moves forward, slowly but resolutely.  If we have the nerve to follow, I am confident that a second term will bring significant positive change for immigrants in the U.S.