On the anniversary of Obama’s immigration announcement

One year ago, President Obama announced a series of executive actions on immigration. Nov. 20, 2015 marks the one-year anniversary for these programs — the politics around these actions take a close second to this week’s troubling reaction against refugees.

The two most controversial programs announced by the president last November included an upgraded deferred action program for Dreamers known as Deferred Action for Childhood Arrivals or DACA, and a new deferred action program for undocumented parents known as Deferred Action for Parents of Americans and Legal Residents or DAPA. Both programs aim to provide deferred action (a form of prosecutorial discretion) to qualifying young people and parents who have resided in the United States for years and present strong humanitarian equities and/or great promise to the American fabric. Congress has delegated the authority for prosecutorial discretion to the Department of Homeland Security or DHS. DHS absorbed many of the functions once held by the legacy Immigration and Naturalization Service (INS) in addition to multiple federal functions unrelated to immigration.  The authority for prosecutorial discretion in immigration law has also long been recognized by the United States Supreme Court. DHS is a cabinet level agency assembled after the 9/11 terrorist attacks through legislation. The goal of prosecutorial discretion is to channel limited enforcement resources towards true priorities and to place the most compelling cases on the backburner.  

{mosads}The president’s 2014 deferred action programs received great energy and applause, but remain delayed because of litigation brought by the state of Texas and 25 other states challenging the legal basis for enacting programs like expanded DACA and DAPA. At the same time, DHS has continued to enforce the immigration laws against people who fall within its refined “enforcement priorities” which in some locations, have led to an enforcement-only operation without consideration for the classic humanitarian reasons that govern prosecutorial discretion in the first place. Importantly, deferred action is only one form of prosecutorial discretion and has been part of the immigration system for many years. The history of deferred action is a musical one and dates back to the immigration case of the former Beatle John Lennon whose attorney Leon Wildes successfully moved INS to share a portfolio of cases pertaining to deferred action (then called non-priority status) and eventually publish a policy that for years remained secret.  Since that time, scores of people have received deferred action because of their equities- including persons of advanced or tender age; with a serious medical condition; with a role as the primary caregiver to a person with a serious medical condition; and those with United States citizen dependents.  

But the long history of deferred action in immigration law has played a minor or no role in the politics that loom around the president’s deferred action programs. These politics include a landscape where Congress has been paralyzed and therefore unable to work through and pass a long overdue comprehensive immigration reform bill; where GOP candidates for president mistakenly believe the president has overstepped his legal authority because he crafted a deferred action program that was transparent and with clear guidelines; and where many of the same states disgruntled by deferred action have expressed similar resentment towards Syrian refugees. This political landscape reveals that the problem lies not with the legal authority but rather in a tug-of-war between fear and compassion.  

One year ago, I stayed up through the night in support of the legal authority for the president’s programs and with great hope and energy for the future of prosecutorial discretion in immigration law. One year later, I am reflective on the profound impact of the delay on families and young people, and the long road it may take to reach compassion.   

Wadhia is the Samuel Weiss Faculty Scholar and law professor at Penn State Law-University Park where she teaches immigration and asylum & refugee law and also directs the Center for Immigrants’ Rights Clinic. Wadhia is author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)