Lawmakers Concerned Executive Action On Immigration Could Mean Legal Limbo For Undocumented

A protester takes part in a demonstration calling for immigration reform at a rally in Chicago, Illinois, March 27, 2014. Jim Young / Reuters

By Katie Nocera

WASHINGTON — Democratic lawmakers have pushed the Obama administration to take significant action on deportations of undocumented immigrants as the prospects for major legislative action on immigration look less and less likely.

But the lawmakers haven’t been as vocal as many advocates want. One of the reasons for the caution: Some lawmakers have concerns about the long-term consequences of executive decisions on deportations — specifically that deferring deportations for undocumented immigrants would leave them in a dangerous legal limbo.

“One has to fully appreciate the urgency in this crisis that we’re facing over deportation policy and I’m one that believes in immediate relief,” said Rep. Raúl Grijalva. “It’s short-term, and I know that and I worry about the consequences of that. But I see no other avenue than deportations continue and we continue waiting to see if Godot is going to have a vote.”

Advocates have put major pressure on the Obama administration on deportations this year, with some — but not all — arguing deportation relief should take precedence over citizenship questions. To his reported frustration, President Obama has been repeatedly attacked on the issue by activists, including dubbing him the “deporter-in-chief.”

Obama directed the secretary of Homeland Security, Jeh Johnson, to review current law and suggest ways to handle deportations “more humanely” after the Congressional Hispanic Caucus was poised to publicly call on the president to do something about deportations.

But some lawmakers privately wonder if that review will have unintended consequences. For instance, if a Republican president is elected in 2016, could any policy changes be undone?

The alternative — to leave things as they are and wait around for something to happen — is far worse, these lawmakers say. Rep. Joaquin Castro pointed to the president’s deferred action for DREAMers, the two-year-old policy for children who were brought to the United States at a young age, as an example of an executive order that’s had a high impact.

“The executive actions would only be temporary, stop-gap measures to relieve the problem. Ideally you wouldn’t have those continue for years and years, the congress should pass something so these changes are written into law,” Castro said. “We all see this as a short-term solution. There’s a concern that these folks would be in a kind of limbo if we don’t find a long-term solution. [The policy] has been going on two years, and those concerns have not come to pass. But if you continue on for a long period of time, you risk that.”

It’s unclear at this point what exactly the Department of Homeland Security will do to make their deportation policy “more humane.” Some potential policy changesunder consideration have been reported, however, including bond hearings for detainees and adjusting priorities for who should be deported, both of which would effectively slow deportations.

If the administration does take further action on the deportation issue, Republican pushback will be swift. Conservatives on Capitol Hill charge the Obama administration is just an example of the president trying to bring “amnesty” to undocumented immigrants through an executive order — and point to it as a reason they are wary of doing anything at all on immigration.

“If he wants to violate the constitution, that’s up to him. I don’t respond to threats from the president,” said Idaho Republican Raúl Labrador. “If he wants to comes to Congress and work with us, call people who are working on immigration reform, that would go a long way. He’s appealing to advocates and people who committed crimes and violated the law. He doesn’t care about the rule of law, and some of us do.”

Many advocates see no real downside to the administration moving forward.

“Our critics sometimes say there’s nothing more permanent than a temporary granted status, and in fact that’s largely true,” said Frank Sharry, executive director of America’s Voice. “It’s not impossible to undo but it’s very hard.”

United We Dream policy director Lorella Praeli said that her group, like others, was focused explicitly on families and immigrants with deep community ties. Like the DACA action, they are betting that any Republican running for national office won’t challenge whatever the president does and doing so would be harmful politically.

“We’re grounded in the fact that we’ll continue to fight for a permanent solution and to protect what we get administratively,” she said. “I think it would be political suicide to for a Republican president or candidate to say they would do away with deferred action for DREAMERS. I think it would be the same in the case of their parents, to go out and separate families.”

“I don’t think anyone could get elected president promising to repeal deferred action for DREAMERS or their parents,” she added.

Sharry pointed to the disadvantage Republican candidate Mitt Romney had in 2012 with Latino voters, especially after he promised to stop deferred action for DREAMers.

“He wasn’t going to take it away from the people who got it but he was going to stop going forward with it, the civil disobedience that would have greeted his election, the wave of opposition would have been intense. Magnify that by millions if a candidate threatened to deport that entire group,” Sharry said.

Rep. Xavier Becerra, the chairman of the Democratic caucus and Hispanic caucus member, argued if the president acts, he’ll do so in a way that will make it difficult for Republicans to disagree with, now or in the future.

“My sense is that we’re not going to go backwards. Whatever the president is going to do is simply going to reflect the overwhelming view of most Americans watching this,” Becerra said. “Even if the president does something on immigration through his executive powers, it likely would fit in what the Republicans themselves proposed on immigration reform.”

“I don’t think the president will go outside of what the law permits, nor will he go outside on what I think there’s unanimous agreement on. I don’t think anything he would do through executive action would be overturned by a future president because it’s going to make sense what he did,” he added.

America’s Voice is an Atlantic grantee.