New Obama Administration Initiatives Give Immigrants' Enhanced Stake in Election



Two modifications in U.S. immigration policy by the Obama administration will serve to reduce the frustration of the immigrants' rights and Latino communities and give them a greater stake in defeating the Republicans in election year 2012.  

The first policy modification has been in the works since the middle of last year. It mandates that the Immigration and Customs Enforcement, which is a part of the federal Department of Homeland Security, change its priorities away from mass deportation of undocumented immigrants to a focus on people with criminal records or who are otherwise considered a danger to society. 

This policy change was discussed in an internal Homeland Security memo, called the “Mayorkas Memorandum” because it was evidently prepared at the request of Alejandro Mayorkas, head of the U.S. Immigration and Citizenship Service        , which was leaked to the rabidly right wing National Review, William F. Buckley's old rag. In that memo, various options were presented whereby the federal government could legally back off on deporting various categories of undocumented immigrants not seen as representing a danger to the public or national security.  

Then, in December, the Obama administration announced that, in effect, major sections of the Mayorkas Memorandum would now be policy.  In practice, this meant that several categories of undocumented immigrants who have gained most public sympathy might be indefinitely spared deportation, and, while their final status would remain undefined, could also get work authorization. These would include people brought to the United States without papers when they were minors, and who therefore would be eligible for the DREAM act if and when Congress passes it, and also many undocumented parents and spouses of U.S. citizens, with “ties to the community”. About 300,000 people already in deportation proceedings would see these proceedings cancelled, while others in the same categories would not be put into deportation proceedings.

This would give a chance to stay in this country to a great many people whose future otherwise would be bleak.  So most of the immigrants' rights movement reacted in a positive way to the initiative, only warning that actual implementation could represent real problems. And indeed, there are stories of both managers and individual immigration officers in ICE centers around the country indignantly refusing to apply the policy. A joint November 2011 report by the American Immigration Lawyers' Association and the American Immigration Council, who surveyed ICE offices on the subject, discovered a contemptuous and recalcitrant attitude amounting to sabotage on the part of some personnel, including at the supervisory level.                                                           

Now the administration has come up with a second policy directive which, though it sounds even more limited than the first, also could be helpful to thousands of mixed status families, meaning ones which have both U.S. citizen and undocumented members.

Prior to immigration reform legislation passed in 1996, an undocumented immigrant who was potentially eligible to regularize his or her status, that is to obtain eventual permanent legal resident status, through a family member who is a U.S. citizen, was supposed to return to his or her country of origin to do the paperwork at a U.S. embassy or consulate, and then wait for a visa. Sometimes, under paragraph 245 (i) of the then existing immigration laws, one could pay a $1000 fine and not have to leave the country. But after the passage of the “Illegal Immigration Reform and Immigrant Responsibility Act” of 1996, not only was the 245 (i) fine option phased out, but the person who returned to his or her home country was barred by law from returning to the United States for up to ten years, as a penalty for being here without authorization in the first place.

This “Catch 22” policy worked to either force undocumented spouses who might otherwise have become legalized to remain undocumented (because if they returned to their country of origin to apply for the visa, they might not be able to return for 10 years), or broke up families, or forced U.S. citizens to leave the United States in order to be with their families. The 285 (i) program was revived for a while after a campaign by the immigrants' rights movement, but at present only protects people grandfathered in from years ago.

Last week, the Obama administration announced that henceforward, in cases where potential extreme hardship to a U.S. citizen spouse or children can be proven, the undocumented individual no longer will have to return to the country of origin to wait for months or years for a visa, and will not be subjected to the ban of up to 10 years from entering the United States when they do so. Even though they will still have to make a trip to their countries of origin to finalize their visa applications, the 10 year ban trap will not snap shut on them--if they are approved for the hardship waiver. 

Immigrants' rights activists and organizations, while reacting cautiously to this announcement as well as the previous one, described this step as highly positive. 

There are an estimated 10.2 million undocumented immigrants in the country. An unknown, but believed to be large, proportion of them belong to mixed-status families, some of whose members may be U.S. citizens, others legal residents and yet others undocumented. A great many of these families will be able to get some kind of relief from one or the other, or both of the administration's new policies. And the hysterical reaction of the Republican right to these initiatives clearly shows that if they gain the White House in 2012, not only will there be no more steps forward in the future, but these two positive changes will certainly be taken back. 

So the immigrants' rights movement, which had been expressing great frustration with the Obama administration for its failure to push immigration reform and especially for its ramping up of the deportation of undocumented immigrants to record levels, at last can point to a positive achievement that must now be defended in the electoral context.

However, there will still be many people who will not be able to get justice even with these changes: People who don't have U.S. citizen relatives, for example. In addition, although the federal government has gone after extremely abusive local authorities who have persecuted immigrants in Maricopa County, Arizona and East Haven, Connecticut, it continues to promote the idea of police-I.C.E cooperation which inevitably leads to racial profiling and the mass arrest of undocumented immigrants who represent no danger to the public, through its “Secure Communities” and 287 (g) programs.   So the need for comprehensive immigration reform and for a basic change in the country's whole attitude toward immigration has not gone away. As far as the actual application of the new policies, a lot will hinge on how terms like “hardship” and “ties to the community” get defined by the immigration bureaucracy, and so those struggles are not over either. Finally, the exclusion of people with criminal records from any consideration is based on the false notion that the U.S. criminal justice system produces justice, whereas many would argue that what it produces is convictions, often of innocent people. That, too, is terrain that will be fought over.  But at least, there is some forward motion.

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