Obama's New Immigration Policy: Disappointment Is in the Details

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Demonstrators protest the possible deportation of an undocumented student in Pompano Beach, Fla., in 2011.
June 18, 2012

Within the niche where I reside, most of my friends and colleagues are supporters of President Obama. He is one of us: a former law professor, a liberal, and—a point of pride for many of us—a person of color who has navigated his way in the whitest of worlds. But among those of us who teach immigration law, the jury is still out. He has not pursued immigration reform as aggressively as he promised, while he has been among the most aggressive enforcers of immigration law in history.

Two weeks ago, together with other immigration-law professors, I drafted and circulated a letter to the president, calling upon him to use the administrative discretion available to him, in lieu of any likely legislative reform of immigration policy right now, to help undocumented college students who find themselves in the worst of all possible worlds.

It appears that he heard us. Or did he?

Tens of thousands of undocumented students are making their way through college without federal financial support and with little state financial aid available. Yet they persist—only to find that they cannot accept employment or enter the professions they have trained for. Thus cases of undocumented law-school graduates who have passed the bar are surfacing in California, Florida, and New York, and more will surface soon enough concerning lawyers, doctors, teachers, psychologists, and others as more and more unauthorized students graduate from college.

On the 30th anniversary of Plyler v. Doe—the 1982 case in which the U.S. Supreme Court ruled that states could not deny funds for the education of children of unauthorized immigrants—the president announced a halt to the deportation of some undocumented immigrants who came to the United States as children and have graduated from high school and served in the military.

Unfortunately, despite the excitement—and outrage from President Obama's Republican opponents—it is not the long-stalled Dream Act, which would create a path to citizenship for some immigrants who came to the United States as children and have been admitted to college or registered under the Selective Service Act. The president's decision, which uses existing prosecutorial discretion, gives both too much (if you listen to those who would restrict immigration) and, I believe, far too little.

While drawing positive attention to hardworking and law-abiding undocumented immigrants is a good thing, both God and the devil reside in the details. As a practical matter, those who oppose easing the path for these immigrants are likely to resist any substantive change. Mitt Romney has indicated his determination to veto any version of the Dream Act, and Rep. Lamar Smith, a Republican from Texas who once championed the concept of prosecutorial discretion, had whatever the opposite of a conversion on the road to Damascus is.

In reality, the president's adoption of a "deferred action" policy is, to a great extent, old wine in a new wineskin. The policy does not grant legal-residency status, as the Dream Act would, but only defers deportation for a renewable two-year period. Announcing the policy shows new political will, but it does not change existing law or expand available discretion. Forms of prosecutorial discretion, including deferred action, have been available for many years (originating in the John Lennon deportation case, in the early 1970s); nothing substantive has been added to existing authority.

Indeed, in the Morton Memo of June 2011, the government announced that it would focus on deporting known criminals and urged prosecutors to use their discretion in considering the cases of students who would qualify for the Dream Act. Yet data from the Department of Homeland Security show that fewer than 300 such students have been granted administrative closure to this day—a remarkably small number, given their clear qualifications for approval.

While it is impossible to tell just how successful the review ordered by John Morton, director of U.S. Immigration and Customs Enforcement, has been to this point—the government has made the data virtually impossible to gather and analyze in any systematic way—the program has been underwhelming. Bear in mind, too, that this administration removed and deported nearly 400,000 unauthorized immigrants last year. Even with those metrics, and the militarization of the U.S.-Mexico border, those who would further restrict immigration are not convinced that there has been enough enforcement. They adamantly oppose the president's new decision.

What is clear is that very few (and certainly not all) of those being reviewed have received employment authorization with any reprieve they may have gotten. Their status is essentially frozen. The president's announcement continues the problem, since it indicates that permission to work will be determined on a case-by-case basis. Of course, both under Morton and throughout U.S. immigration history, the right to work has been handed out only sparingly.

Most important, the review process in President Obama's plan is essentially for those already in the machinery of deportation or removal. That is, there is no application procedure for deferred action, no lottery, and many details yet to be determined. I tell students not out themselves not to enter the system, as it would also bring their undocumented parents to the attention of the authorities, and no provisions have been made for them. Deferred action is a vague and confusing process—and it will probably lead to unscrupulous notarios entering the picture.

Furthermore, students who reside in states where they cannot enroll in public colleges or where the states have no resident-tuition provisions for undocumented immigrants will very likely not be able to raise a claim under this policy, because they will have been unable to enroll in college. While about a dozen states have laws granting undocumented immigrants in-state tuition rates, most do not. Even if the Dream Act itself were to be enacted tomorrow by Congress, states would still have to pass laws to grant in-state tuition and financial aid to qualified students in the majority of states, or most of them would be unable to afford college.

And some features of President Obama's policy are purely chimerical. The announcement refers to members of the military being "eligible" for this new relief, but undocumented adults cannot legally enlist under current law, nor can deferred-action grantees. Such absurd promises undermine the real value of President Obama's announcement, which calls attention to the vexing issue of how to deal responsibly with the potential, and eventually likely, new members of our American community.

I add, but need not, that administrations come and go, and that such initiatives can wax and wane. On this point, opponents and supporters of immigration reform can agree: The approach just announced cannot be the only way to resolve the impasse. The real question is, How can this complex issue be resolved in the current climate?

Thirty years after the Supreme Court told us that undocumented immigrants deserve an education, let's be honest. Even if the tens of thousands of undocumented students currently enrolled in our colleges, and the many who have graduated and cannot use their education, receive deferred action, they will still not find themselves on a pathway to permanent residence. Their chances of being deported may be reduced, but without employment authorization and a reasonable opportunity to regularize their status, they will still live in the shadows—with limited hope.

Michael A. Olivas is a professor of law and director of the Institute of Higher Education Law and Governance, at the University of Houston.