As the final leg of the 2012 U.S. presidential campaign gets underway in earnest, immigration remains a divisive issue between the political parties – although it remains unclear to what extent Barack Obama and Mitt Romney themselves will leverage the topic to turn out their bases.
The Obama administration's recent implementation of the Deferred Action for Childhood Arrivals (DACA) program, designed to grant a two-year reprieve from deportation to hundreds of thousands of qualified unauthorized immigrants, has kept immigration in the forefront. It could also play a role in bringing voters to the polls – Latino and other immigrant voters for Obama, and enforcement-minded voters for Romney.
The parties' dissimilar viewpoints on immigration policy were laid bare in the platforms adopted at the recent Democratic and Republican national conventions. The ongoing debate of the Obama administration's DACA initiative is only one, although major, example. A second, more fundamental difference is the role that the respective parties think states should play in immigration enforcement. Although both parties agree that change is needed on a wide variety of immigration issues, the deepening divide suggests that, regardless of who wins the national election in November, there will be limited ground for legislative progress.
Party platforms and convention rhetoric are not necessarily indicative of the policies which a party's nominee will choose to pursue as president. However, the platforms do represent the dominant view of the party faithful on key policy issues. They are thus an important indicator of future policy trends because they showcase how, and on which issues, politicians may be willing to forge compromises.
Deferred Action: A Point of Contention
One major point of contention is the deferred action policy. Thus far, more than 82,000 individuals have submitted applications, and at the current rate, the total count could perhaps reach one-half or more of the eligible population by the end of the year. Nevertheless, the pace could be significantly altered by the results of the presidential election. Mitt Romney has shown no clear intent with regard to the future of program if elected.
The Democrats referenced DACA several times in their party platform, as well as during the Democratic National Convention. All three key Convention speakers — former President Bill Clinton, Vice President Joe Biden, and President Obama himself — praised the DACA program. Benita Veliz, a twenty-seven year old unauthorized immigrant from Mexico who hopes to benefit from DACA, became the first unauthorized immigrant ever to speak at a party convention when she took the stage to speak about the benefits of the program.
On the other side of the spectrum, Republicans have been highly critical of DACA. Their party platform criticizes the Obama administration for its creation of a “backdoor amnesty program unrecognized in law,” a thinly veiled reference to the DACA program and the fact that it was implemented by the Obama administration via executive action, rather than through legislative channels.
Underlying Vision of State vs. Federal Roles in Immigration Enforcement
The two major political parties' campaign platforms also point to a deep and fundamental disagreement over the role that the states should play in shaping immigration enforcement policy. In contrast with the Republican party platforms of 2000, 2004, and 2008, the 2012, the GOP platform emphasizes the importance of state immigration enforcement measures, noting that such policies must be “encouraged, not attacked”. It situates the role of states in immigration enforcement within a larger debate over federal vs. state authority, referencing the Obama administration's “continued assaults” on state governments “in matters ranging from voter ID laws to immigration, from healthcare programs to land use decisions.”
The Republican platform strongly criticizes the Obama administration for bringing lawsuits against Arizona, Alabama, South Carolina, and Utah—four states which enacted their own tough immigration enforcement laws during 2010 and 2011. It recommends that the pending lawsuits in these states be dismissed immediately.
The platform also indicates that under a Republican administration, the use of the 287(g) immigration enforcement program would be encouraged. The 287(g) program, which the Obama administration has scaled back in recent years, enables states and localities to enter into agreements with the federal government through which state and local law enforcement officers are authorized to enforce certain aspects of immigration law. The Republican platform makes no mention of Secure Communities, a separate immigration enforcement program that has been greatly expanded by the Obama administration and that allows the federal government to electronically and remotely screen the immigration status of individuals at state and local prisons who were arrested for criminal offenses.
The Democrats' approach to state immigration enforcement in their party platform and throughout their convention was almost diametrically opposed to the Republican stance. The Democratic platform emphasizes the primacy of the federal government in crafting immigration law and policy and views state immigration enforcement efforts as interfering with that role. It praises the Obama administration for bringing lawsuits against states that have passed their own immigration enforcement measures. The platform begins its statement on immigration with a call for comprehensive immigration reform, a further indication of the party's mindset that the nation's immigration issues would be best addressed at the national level and through the legislative branch of the federal government, to the extent possible.
The Democratic platform also praises the Obama administration's use of executive branch initiatives to implement immigration policy changes, noting with approval of the administration's new prosecutorial discretion initiative, which concentrates immigration enforcement resources on non-citizens who have committed crimes, as well as its simplification of the visa application process for some foreign-born relatives of United States citizens.
Other Key Differences between the Two Parties
On treatment of unauthorized immigrants, Republicans advocate a policy of “self-deportation” (enacting policies which encourage unauthorized immigrants to leave the country on their own) as a way to decrease the population of unauthorized immigrants in the United States, currently estimated at 11.5 million. The Democratic party, in contrast, emphasizes the need for a “comprehensive immigration reform” bill, which would pair some immigration enforcement measures with changes to the current visa system and a legalization program for certain unauthorized immigrants.
The two parties also have vastly different views regarding the focus of worksite enforcement measures targeting unauthorized employment. While the Republican platform states that the Obama administration has “lessened worksite enforcement,” and has allowed unauthorized immigrants who are found working illegally to just “walk down the street to the next employer” by not arresting them, the Democrats have emphasized that they have continued worksite enforcement efforts by targeting employers that hire unauthorized immigrants, rather than the unauthorized immigrants themselves.
To address the nation's future worker needs, the Republican platform calls for a guest worker program. The Democrats prefer a comprehensive approach which has traditionally included legalizing workers already in the country and providing opportunities for the admission of new workers with some pathway to permanent status.
Room for Compromise?
If there is any evidence of common ground between the two parties, it is on issues involving visas for highly-skilled immigrants. The Republican platform, for example, notes that as part of the country's economic recovery plan, the United States should pursue a policy of “strategic immigration”, which the party defines as granting more work visas to holders of advanced degrees in the sciences, technology, engineering, and math, and allowing highly-skilled immigrants who receive advanced degrees in the United States to remain in the country following graduation. Similarly, the Democratic platform states that the country needs to create “a system for allocating visas that meets our economic needs.” The question, then, is whether the two parties will be able to forge any major legislative compromise in an atmosphere in which their fundamental views on immigration remain so very far apart.
Policy Beat in Brief
CBP to Stop Issuing I-94 Cards. Foreign travelers coming to the United States will no longer be required to fill out and retain paper cards containing their date of admission and visa category (known as form I-94 cards) under a new policy being implemented by United States Customs and Border Protection (CBP). In mid-August, CBP announced plans to phase-out the paper-based I-94 process, primarily because the agency already collects the same information through its electronic Advance Passenger Information System (APIS). Under the new policy, CBP officers who admit foreign nationals to the United States will continue to place a stamp in each non-citizen's passport, noting the person's date of admission and period of authorized stay. The government has not yet announced when the new policy will take effect.
Judge Lifts Bar on Policing Provision of SB 1070. Federal District Court Judge Susan Bolton ruled that Arizona's local law enforcement agencies can begin implementing SB 1070's policing provision, which was upheld by the Supreme Court in June, and requires police officers to determine the immigration status of those stopped by the police who are suspected of being unauthorized. Opponents of the measure sought to enjoin implementing of the law based on racial profiling concerns, while the law's supporters argued that racial profiling fears were speculative and that local police officers had received adequate civil rights training. The requirement will go into effect later this month when the existing bar, in place from the federal government's initial challenge to SB 1070, is lifted.
11th Circuit Rules on Alabama's and Georgia's Immigration Laws. The U.S. Court of Appeals for the 11th Circuit issued two rulings finding certain provisions of state immigration enforcement laws passed by Alabama (HB 56) and Georgia (HB 87) unconstitutional. Most notably, a three member panel of the appeals court ruled that the portion of HB 56 which required schools to collect proof of citizenship for students to determine their immigration status is preempted by federal law and violates the Equal Protection Clause. However, the court also ruled that the portions of HB 56 and HB 87 which require law enforcement officers to investigate into a person's immigration status when an officer suspects that the person is an unauthorized immigrant could take effect, reasoning that such provisions were similar to the part of Arizona law SB 1070 that the Supreme Court upheld last June. On September 10, the State of Alabama filed an appeal with the 11th Circuit, asking for the entire court to rehear the case.
DACA Recipients Ineligible for Medicaid, CHIP. Those granted deferred action under the DACA program will not be eligible for Medicaid or the Children's Health Insurance Program (CHIP), announced the U.S. Department of Health and Human Services (HHS) in a letter to state health officials and Medicaid directors who administer both healthcare programs. Currently, states can offer Medicaid and CHIP to US citizens, permanent residents, and some pregnant women and children (under 22) who are lawfully present in the United States, as defined by HHS. While pregnant women and children with deferred action can receive Medicaid and CHIP coverage under the existing guidelines, in light of DHS's new policy, HHS issued a new rule which renders recipients of deferred action specifically through the DACA program ineligible.
Mexican Interior Repatriation Program Suspended. The Department of Homeland Security (DHS) has suspended the Mexican Interior Repatriation Program (MIRP), which each summer flies deportable Mexican migrants apprehended at the border in Arizona to the interior of Mexico in order to return them closer to their hometowns. According to the Border Patrol, MIRP has humanitarian benefits and effectively discourages future crossing attempts by making it more difficult and costly to reinitiate a journey to the United States. While DHS may resume MIRP in the future, the high-cost program was halted to save resources and because reduced illegal crossings have created less demand for repatriation flights. Since it began in 2004, MIRP has provided flights for more than 125,000 migrants.
U-Visa cap reached for 2012. For the third year in a row, U.S. Citizenship and Immigration Services (USCIS) approved the statutory maximum of 10,000 petitions for U nonimmigrant status. U-Visas are available to immigrants who are victims of designated crimes (including domestic violence, sexual assault, and human trafficking), can demonstrate good moral character, and are willing to assist law enforcement with the investigation and prosecution of the crime. Recipients of U-visa status can apply for temporary work authorization, are protected against deportation, and are eligible to apply for permanent resident status after three years. Congress created the U-visa category in 2000 and the program was implemented in 2008. Since then, over 61,000 crime victims and their family members have received U-visas.
DHS Office of Immigration Statistics Releases 2011 Enforcement Numbers. On September 7, the Department of Homeland Security's Office of Immigration Statistics (OIS) published their annual report detailing internal immigration enforcement actions. In fiscal year 2011, DHS removed 392,000 foreign nationals (including 188,000 criminals), up from 387,000 reported in the FY 2010 statistical report. The leading countries of origin of those removed were Mexico, Guatemala, Honduras, and El Salvador. Additionally, DHS agencies apprehended a total of 642,000 individuals, returned 324,000 foreign nationals to their home countries without a removal order, and ICE detained approximately 429,000 foreign nationals. CBP found 212,000 foreign nationals inadmissible for entry into the United States. The statistics were published amidst a wave of Congressional criticism over DHS's inconsistent reporting of deportation numbers.
ICE Agents Sue DHS Secretary and ICE Director. On August 23, a group of ten Immigration and Customs Enforcement (ICE) agents filed a lawsuit in the U.S. District Court in Dallas against Janet Napolitano, Homeland Security Secretary, and John Morton, Director of ICE. The lawsuit states that the DACA directive is unlawful and unconstitutional, and seeks to block the program's implementation. It also seeks to prevent ICE officers from being forced to violate federal law by following instructions to not deport DACA-qualifying unauthorized immigrants. Kris Kobach, the Kansas Secretary of State and an architect and defender of many recent state immigration enforcement laws, such as those passed in Arizona and Alabama, is representing the ICE agents and officials.
OIG Report Finds Faulty Records in US-VISIT Database. A recent report by the Office of the Inspector General (OIG) found that the Automated Biometric Identification System (IDENT), DHS's primary fingerprint database for foreign nationals that seek to enter the United States, has not succeeded in identifying and flagging use of fraudulent identities. The report found that IDENT contained 825,000 cases (0.2 percent of overall entries) where fingerprint records matched with more than one set of biographic data, which includes an individual's name, date of birth, place of birth, etc. Data entry errors are said to account for most of the inconsistencies; however, a share of the discrepancies resulted from individuals using false or multiple identities to enter the United States.
State and Local Policy Beat in Brief
CA State Legislature Passes Bill to Allow DACA Beneficiaries to Drive. The California state legislature passed a bill authorizing the Department of Motor Vehicles to grant driver's licenses to California residents who receive deferred action status under the federal government's new DACA initiative. States are currently split on whether to allow non-citizens who receive status under DACA to also apply for state-issued driver's licenses. While governors in Nebraska and Arizona have announced that they will not allow DACA beneficiaries to receive driver's licenses, other states, including Texas, have gone in the opposite direction. The California bill now moves to the desk of Governor Jerry Brown, who has not yet indicated whether he plans to sign it.
Settlement Reached in Unlawful ICE Detention Case. A U.S. citizen has settled with ICE for $25,000, after bringing a civil rights lawsuit against the agency. He was detained as a result of officials' mistaken belief that he was born in the Dominican Republic. Ernesto Galarza, the plaintiff in the case, alleged that after he was arrested in November of 2008 on drug-related criminal charges, law enforcement officials in Allentown, Pennsylvania, as well as federal ICE agents, prevented him from bonding out of state custody by filing an immigration “detainer” against him. Mr. Galarza maintained that throughout his detention, he provided proof of his U.S. citizenship and repeatedly explained that he was born in Puerto Rico, rendering him a U.S. citizen by birth.
Courts in FL, NJ, Reject State Regulations Barring Children of Unauthorized from In-State Tuition. Federal judges in Florida and New Jersey have rejected as unconstitutional new state regulations that barred certain U.S. citizen youths with unauthorized immigrant parents from receiving in-state tuition at public colleges and universities. Many states require students applying for in-state tuition to prove their legal residency. However, the Florida and New Jersey regulations were unique in that, in addition, certain students' parents were required to prove their own legal status before their children received in-state tuition rates.