The Obama administration issued a slew of memos yesterday outlining executive actions they'll be taking on immigration. The policy change that's gotten the most attention, both before the memos were officially released and afterward, is the president's new deferred action program for parents of US citizens and permanent residents. But that's far from the only change the administration's making — or even the only one that's going to affect the lives of unauthorized immigrants.
There are over 7 million immigrants not covered by Obama's new guarantee of non-deportation, and yesterday's orders have big implications for them, too.
Not everyone without protection is going to be deported
Obama is granting blanket immunity from deportation to about 4.3 million immigrants via the new deferred action program. That leaves about 7 million people not protected, for one reason or another. DHS claims they have funding to deport about 400,000 immigrants each year (although during Obama's second term, it looks like they're deporting slightly fewer). This leaves a substantial open question of how those limited resources will be used.
Choices have to get made. And one of those choices is whether to use random deportations to keep unauthorized immigrants in line, or to focus resources on some unauthorized immigrants while declining to deport others.
The Obama administration has tried to take the second path since the day it arrived in office: as Obama said in last night's speech, they want to deport "felons, not families." But they've struggled mightily to make that actually happen. ICE agents have with words and deeds expressed a strong preference for untargeted enforcement, and previous targeting directives from the White House have included things, such as driving a car without a license, that target a huge swath of the unauthorized population. The new directives do a drastically better job of matching the administration's policy to its rhetoric.
Obama's new immigration priorities
The new priorities are much more specific, and target the following categories:
- National security threats. Obviously.
- Convicted felons. This now comes with an exception for crimes committed solely in virtue of unauthorized status. So, for example, an immigrant convicted of a felony in Missouri for driving without a license doesn't count as a priority for deportation. An immigrant convicted of three or more misdemeanors is also a priority — albeit a lower one — but they have to be based on three separate incidents.
- Convicted gang members. This is often defined very vaguely, but the new guidelines have very specific rules for who counts as a gang member and why.
- Immigrants apprehended at the border. This was an implicit priority before now — an increasing share of deportations have come from the border, as deportations in the interior have decreased over Obama's second term. But it's now explicit.
- Immigrants who arrived in the US in 2014. "Recent border crossers" used to be a priority, but DHS wasn't willing to define "recent." Now it is.
- Immigrants who were ordered deported in 2014. Getting deported, and coming back, a decade ago doesn't make someone a priority anymore.
Holding ICE field offices accountable
Another aspect of the new initiative is an attempt to formally scale back ICE field agents' discretion — and thus their ability to passively undermine the administration's approach.
Under the new policy, agents are allowed to deport someone who's not a priority — but only if the director of their field office decides it would "serve an important federal interest." It's clear from the rest of the memo that simply deporting immigrants for being unauthorized does not count, according to DHS, as an important federal interest.
This creates accountability in two directions. For one thing, it directs ICE agents to get the approval of someone higher up if they want to deport a non-priority immigrant. For another, if ICE is trying to deport the parent of a US citizen, and activists and the press start making a fuss about it — as has happened many times before — DHS headquarters can put the field office director on the spot, since it's assumed he signed off on it.
Non-criminals have less reason to fear deportation than they have for a decade
The reason the Obama administration needed, in the eyes of immigration advocates, to expand deferred action was that it took away immigrants' constant fear of deportation. The administration's passive efforts didn't. Even though there's evidence that the administration really has focused immigration enforcement in its second term, fear of deportation is a part of daily life for unauthorized immigrants — even those who the administration said it didn't want to deport.
The new deferred-action program takes that fear away for millions of immigrants. But it doesn't take it away for all of them.
With the changes to enforcement policy, however — assuming that those changes can be made to stick — otherwise law-abiding unauthorized immigrants who have settled in the US would have genuine reason to believe they won't be deported. That hasn't been true for at least a decade, and possibly longer.
Immigration enforcement advocates see this as a bad thing. The good news for them might be that after years of distrust, unauthorized immigrants aren't going to shed their fear of deportation so easily just because of a new memo. But it arguably represents the biggest policy shift President Obama made yesterday.