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How much discretion does Obama have in setting deportation priorities?

November 26, 2013 at 12:00 AM EDT
While immigration reform currently seems politically out of reach, hundreds of thousands of undocumented residents are still being deported. Gwen Ifill gets viewpoints on the debate over deportation from Marielena Hincapié of the National Immigration Law Center and David Martin of the University of Virginia School of Law.

GWEN IFILL: Now to the debate within the debate over immigration reform.

Even as a sweeping overhaul remains politically out of reach, hundreds of thousands of undocumented residents are still being deported. And that has angered some of the president’s most loyal supporters.


GWEN IFILL: The president was making his case for immigration reform on Monday in San Francisco, when a dissenting voice rose right behind him, demanding an end to deportations that divide families.

PRESIDENT OBAMA: Most importantly, we will live up to our character as a nation.

JU HONG, undocumented immigrant: Our families are separated. I need your help. There are thousands of other…

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JU HONG: … immigrants.

PRESIDENT OBAMA: That’s — that’s — that’s exactly what we’re talking about here.


JU HONG: … every single day.

PRESIDENT OBAMA: That’s what why we’re here.


JU HONG: Mr. President, please, use your executive order to halt deportations for all 11.5 undocumented immigrants in this country right now.

GWEN IFILL: The man making the plea was Ju Hong, a 24-year-old undocumented immigrant from South Korea. Others joined in, chanting for action, even as the president waved the Secret Service away.


MAN: Stop deportation.


PRESIDENT OBAMA: What I would like to do — no, no, don’t worry about it, guys.

MAN: Stop deportation. Yes, we can.

GWEN IFILL: The administration has deported record numbers of undocumented immigrants, about 400,000 every year. Protesters have pressed for executive action to halt the practice just as Mr. Obama ordered a stop to deporting undocumented immigrant children last year.

But the president insisted yesterday that, in this case, his hands are tied.

PRESIDENT OBAMA: The easy way out is to try to yell and pretend like I can do something by violating our laws.

And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve, but it won’t be as easy as just shouting. It requires us lobbying and getting it done.



GWEN IFILL: Still, the prospect of getting it done as part of broad immigration reform seems remote for now. A bipartisan measure passed the Senate in July, but House Republicans have no plans to take it up before year’s end.

The issue, however, continues to play out on the local level. In Boston, the newly elected mayor said today he wants to pull out of a federal program that tracks people in the country illegally. But detention and deportation continues apace.

For more on that, we turn to Marielena Hincapie, executive director of the National Immigration Law Center, and David Martin, a law professor at the University of Virginia. He served in the Obama administration as deputy general counsel of the Department of Homeland Security.

Welcome to you both.

Ms. Hincapie, we — why have deportations increased, in your view?

MARIELENA HINCAPIE, National Immigration Law Center: Well, under the Obama administration, we’re seeing a record number of people being detained and deported. These are your working mothers, working fathers. They’re people picking our fruits, serving our food at restaurants.


And there have been a number of programs like Secure Communities, which is a program that the administration created and has enforced vigorously. We also see a lot of collaboration between law enforcement agents at the ground, as well as with immigration agents.

And we are about to rake a record of two million deportees under this administration.

GWEN IFILL: So, David Martin, why is that happening?

DAVID MARTIN, Department of Homeland Security: Well, Congress has funded enforcement at those levels. The administration is carrying out the laws, honoring the president’s obligation under the Constitution to take care that the laws be faithfully executed.

And so this is both a congressional and an executive policy. But I want to emphasize that the Obama administration has made an effort to redirect deportations and enforcement actions so that they focus on a better set of priorities, to prioritize people with criminal involvement or recent border crossers or people with serious immigration violations.

And the best example of that, I think, is the Deferred Action for Childhood Arrivals policy, the policy for the so-called DREAMers, for people who came here as young children and are not accountable for their illegal presence in the country. That was a policy announced about 18 months ago that provides a form of status for those people.

So all of that is part of the process. The president doesn’t have the authority to simply wave off enforcement of the laws. That’s not the kind of system we have. So there’s been an effort to reprioritize it.

GWEN IFILL: Ms. Hincapie, is that re-prioritization enough for you? The president, that’s essentially what he said yesterday to the heckler in the crowd: Listen, it’s not up to me. Go talk to Congress.

MARIELENA HINCAPIE: I think the young immigrant in the crowd was really voicing a growing concern among immigrant communities because of the frustration of congressional inaction, as well as the fact that this administration is deporting more people than any prior administration.

And David is right that the appropriations — Congress has — is partially at fault here in terms of the amount of money that they’re throwing away, $18 billion in last fiscal year alone, more than all law enforcement — all federal agent — law enforcement agencies combined. That’s incredible that this nation is spending that much time, that much money at a time that we’re facing such a federal deficit.

But the administration with the Deferred Action for Childhood Arrivals program did identify that DREAMers, in particular young immigrants, are eligible or considered to be low-level priority. The problem is that the administration isn’t necessarily enforcing or applying even its existing policies and procedures.

GWEN IFILL: But what do you say to David Martin’s point that the law is the law is the law?

MARIELENA HINCAPIE: Well, I think there are — we believe in the rule of law as well.

And we believe that the administration should be enforcing — and hopefully under new DHS leadership with Jeh Johnson’s nomination, they will actually put in place an implementation of existing policies and priorities. So the way that the administration has identified who is a — considered a low-level priority, we shouldn’t continue to see immigrant workers, people who are paying taxes, people who are raising a family, who are contributing to our economy in so many different ways, the same very people that would be eligible for immigration reform, which the administration has identified as its top legislative priority.

We couldn’t — we shouldn’t be deporting today the citizens of tomorrow.

GWEN IFILL: David Martin, how much latitude does the president have to say, OK, these are criminals over here who are out of immigration status and these are mothers and children who are out of immigration status, and these I will deport or detain and these I won’t?

DAVID MARTIN: The president does have discretion to set the priorities, and that’s pretty much what the president has tried to do.

It’s not just for people with criminal records, but also, for example, for recent arrivals, even if they’re just coming here to work. I think that’s a sound overall policy. So the president does have authority. And it can be adjusted some beyond what it is right now. And also I share Marielena’s concern.

Steps need to be strengthened to make sure that the priorities are really followed. But the president doesn’t have the authority to do what some of the people I think were asking for yesterday, essentially to stop all deportations of any of the estimated 11.5 million people who are here in the country. Prosecutorial discretion is the authority to focus resources, to direct toward priorities. It’s not the authority to negate the law or ignore it.

GWEN IFILL: Can I ask you another question about that? I’m curious how this — she alluded to the fact that this — these are record numbers of deportations. How does what this administration is doing compare to past administrations?


DAVID MARTIN: Well, the administration has not ramped up enforcement beyond essentially what it was at the end of the Bush administration.

There was a big run-up in enforcement and especially in congressional appropriations for that in the Clinton administration and then in the George W. Bush administration. I did some calculations on how that was. The final year of the Bush administration, there were 391,000 removals and returns by ICE, the Immigration and Customs Enforcement, the interior enforcement agency.

Currently, it’s running about 400,000. And it is increasing somewhat in line with the appropriations. But this is — this may be record deportations now, but it’s only slightly above the level that it reached in the Bush administration, again, with Congress’ very active support.

If we’re going to change that pattern, we really need to get new legislation and also the focus has to be as well on Congress and on the appropriations process.

GWEN IFILL: Marielena, a final word?

MARIELENA HINCAPIE: Yes, I think Congress is — the final decision really rests with Congress. Congress must enact immigration reform. That’s where the permanent solution rests.

However, in the meantime, the president does have, we believe, the legal authority and the moral authority to reduce the number of deportations, so that people who are considered low-level priorities that would be eligible today for immigration reform if Congress acted shouldn’t be deported anymore.

GWEN IFILL: And, David Martin, is this a legal and moral — legal or a moral issue, I guess?

DAVID MARTIN: Well, both are involved.

The effort to try to infuse more of this moral perspective — people really disagree on what that is — but that perspective into our overall enforcement picture has to be primarily done through working on amendments for the laws. We’re involved in that process. It’s a very difficult process, politically fraught.

But I think serious continuing level of enforcement has got to be a key part of the overall package and the long-term effort to make our immigration system healthy.

GWEN IFILL: David Martin at the University of Virginia and Marielena Hincapie of National Immigration Law Center, thank you both so much.


DAVID MARTIN: Thank you.