Two bills snaking their way through Congress, both with equally catchy names, show just how polarized the debate over immigration has become.
Democratic Senator Dick Durbin of Illinois took up his decade-long fight to move the DREAM Act through Congress in late June, holding the bill’s first-ever Senate committee hearing. Durbin and the bill’s House sponsor, Democratic Congressman Howard Berman of California, contend that every year Congress fails to pass a DREAM Act (and, if the Tea Party winds in Congress are any indicator, this could be the tenth) more and more “young people who did nothing wrong” are unfairly deported.
Now take GOP Congressman Lamar Smith, who has entrenched himself on the far opposite end of the spectrum. The DREAM Act’s doppelganger, Smith’s HALT Act (“Hinder the Administration’s Legalization Temptation”) would essentially freeze administrative controls that the Department of Homeland Security uses to stall certain deportations that aren’t deemed a priority while Congress works on that ever-elusive “legislative fix.”
Smith’s bill would strip prosecutorial discretion away from DHS and Immigration and Customs Enforcement, and, for Smith, stop the Obama Administration’s shadowy attempts to grant “backdoor amnesty” to millions of undocumented immigrants by fiat. The bill would sunset on January 21, 2013, the day after the end of Obama’s first term (perhaps wishful thinking on Smith’s part).
By now, it’s clear what Durbin’s DREAM Act would grant: A path to citizenship for those brought into the country as children, provided they attend college or join the military. But what would its brother, the HALT Act, take away?
Local immigration attorney Lance Curtright said Smith’s measure strips away a number of administrative controls available to ICE officials and judges overseeing immigration cases — measures they’ve employed for over a decade. Most immigrants who have either overstayed visas or never entered legally are subject to a ban of up to 10 years from the U.S. But Congress in the ’90s created a waiver for the ban in certain circumstances, namely if the deportation would cause “extreme hardship” to the immigrant’s citizen children or immediate family members — an increasingly tough measure to meet, Curtright said.
Curtright finds the measure hysterical, since the majority of those who seek the hardship waiver don’t get it anyway. “It’s not like a there’s a gold rush here.”
Lamar Smith’s bill would also rule out deferred action for cases like that of the Arboleda brothers, who left Colombia as teenagers to move to the Houston suburbs, filing for asylum, though their petition was denied. The pair was flagged for deportation after Mauro Arboleda, a 24-year-old recent University of Houston graduate, was detained by ICE after he was pulled over in a traffic stop. By the end of last month, amid mounting public pressure (including a march here in SA), ICE agreed to grant deferred action for both brothers.
“Right now, for these people, deferred action, prosecutorial discretion, is what’s keeping them from being deported,” said David Bennion, a Philadelphia-based immigration attorney who’s handled a several so-called DREAM Act cases over the past five years. “With deferred action, ICE will often say they’re not going to deport you right now, but you have to check in periodically. … And ICE could detain you at any check-in, throw you on plane if they think you’re going to run away, which they have done.”
Softer enforcement, at least for some, is exactly what roused Smith. In June, ICE director John Morton laid out specific priorities for his agency, alerting agents to, under ICE’s stated goals, which types of cases merit softer treatment. In the memo, Smith asked agents to take into account if an immigrant has children who are U.S. citizens, or if the immigrant was brought to the U.S. by parents as a young child.
While Smith cites that memo as evidence of Obama’s plot to grant broad-sweeping amnesty, GOP Senator David Vitter of Louisiana, the Senate sponsor of the HALT Act, even went so far as to call the DREAM Act itself a “cover for the Obama administration’s amnesty agenda.”
But if Obama is advancing anything of the kind, he’s been pretty coy about it. As DHS Secretary Janet Napolitano noted in a congressional hearing this spring, the administration deported over 395,000 immigrants in 2010 — a record number. During that same time, they exercised deferred action in fewer than 900 cases, a lower number, she said, than in previous years, though she didn’t give further statistics.
SA immigration attorney Curtright said that attacking prosecutorial discretion as some sort of defensive posture against “mass legalization” was “an absurd notion.” That the current administration is exercising the same prosecutorial discretion they’ve always had the authority to do.
Interestingly, it’s Smith that has flipped on the issue.
In 1999 he wrote then-Attorney General Janet Reno to let immigration authorities decide whether to enforce immigration laws in particular cases, worrying the government was deporting “criminal aliens” who met the extreme-hardship standard. Smith and over two-dozen other House members asked for officials to enact guidelines to ensure consistent use of “prosecutorial discretion.” (PolitiFact has dubbed Smith’s current position with the HALT Act a “Full Flop.”) •