What Is The Political Calculus On Immigration Reform?


The Obama administration appears to be caught up in a quandary of whether to do something positive to stop the level of deportations by executive fiat or to do nothing at present in the hopes that compromise can be reached with Republicans in the House for more permanent immigration reform. Thus far President Obama has chosen the cautious approach through directing DHS Secretary Jeh Johnson to delay a review of deportation enforcement with a view to narrowing the categories of undocumented immigrants to prioritize for deportation until Congress breaks in August. Is this the best approach? After weighing the pros and cons, it does not appear the right move as this writer has very little hope that the Republicans will come through on immigration reform by August 1st when both houses of Congress will adjourn until September 7th. On the one hand, it would seemingly put the President on a higher moral ground in having given the Republicans a last chance, but on the other would lose the Democrats two months that could be used to set the groundwork with pro-immigration forces in battleground states of the midterm elections.

The midterm elections in November will likely dictate the actions of the GOP more than anything else on the subject of immigration, and as we head into June, time is slipping away from the Democrats. There are no realistic chances that Speaker John Boehner will allow the Senate bill, S. 744, to be voted on in the House during the next couple of months when the parties start to rev up for the elections. What are the chances of having limited pieces of immigration legislation on the floor during that same period of time? This writer believes that any Republican led legislation would be so limited and have so many strings attached to it as to be unacceptable to the vast majority of people. At this time, top Republicans are not even willing to give relief to undocumented immigrants who have served this country as seen by the House Majority Leader, Rep. Eric Cantor‘s (VA.), recent action in not allowing an amendment to the annual defense bill that would give a path to citizenship for illegal immigrants who served in the military. What is at stake for the Democrats now is time – time for them to organize and rally the pro-immigration forces which are now so deeply disappointed and frustrated that many will not work for the campaigns - thus giving the Republicans a large advantage in getting out the vote. If the Administration keeps hoping for the next two months that Mr. Boehner will have sufficient courage to do what will be recognized as right historically or that he might bring the Senate bill on the floor because he plans to retire or is willing to endanger his speakership, it may not be able to muster enough party blanketing ability in key states to keep the Republicans from taking over the Senate.

The math is clear – a gain of 6 seats in the Senate is all that it will take for the Republicans to control the two houses of Congress, thus blunting Democratic initiatives until the end of Mr. Obama’s term.

Key Republicans have already made it clear that they do not wish to get into the immigration issue before the midterm elections as they believe the GOP has a great shot at regaining control of the Senate and looking lax on immigration would hurt their chances. Projections of many poll takers support their common perception. Data compiled by the Cook Political Report and from Larry Sabato, a professor of politics at the University of Virginia and reported in The New York Times on March 2, 2014, showed 10 Democratic seats at risk in the states of Alaska, Arkansas, Colorado, Iowa, Louisiana, Michigan, Montana, North Carolina, South Dakota and West Virginia, and only 2 Republican seats at risk in Georgia and Kentucky. Freedom’s Lighthouse’s June 3, 2014, assessment showed 9 races in the tossup category (Alaska, Arkansas, Colorado, Georgia, Iowa, Kentucky, Louisiana, Michigan, North Carolina) with an additional 3 seats already projected as GOP takeaways (Montana, South Dakota, West Virginia). A Fox News poll published on June 5, 2014 showed that if the 2014 midterm elections were held today, 43% of voters would back the Republican candidate in their House district while 39% would vote for the Democrat. The political news site Politico’s mid-May poll showed Republicans holding a 7 point advantage, 43% – 36% for Senate races. Why then would the Administration believe that the Republicans would do anything but string it along for the next few months given their clear statements? The only contradictory indication was Speaker Boehner’s scolding of Republicans over the immigration issue in April at a Rotary club function that he later played down as kidding around and teasing the ones you love. If the Republicans win back control of the Senate with many of their candidates adopting their standard “protect the border” rhetoric, how could they then justify to their supporters a swift turnaround to pass immigration reform? It defies common sense to believe that they would do so for the good of the country given the pettiness of the partisan politics which has dominated Washington over the past decade and a half.

The big shining ball is the midterm elections because nothing else likely will determine the course of immigration reform more than what happens there. The Democrats exercised the nuclear option in November 2013, and the Republicans learned that they could no longer stop executive and federal court appointments (other than the Supreme Court) by filibustering since the nuclear option put a stop to Senate debate at 51 votes instead of the traditional 60. From having a powerful mechanism to curb the power of the President in the Senate to having next to nothing and having the perpetual threat that the nuclear option could extend to Supreme Court appointments, the Republicans have found themselves hemmed in and only projecting power in the House of Representatives. From there, their legislative efforts can be stymied by the Democrat-controlled Senate or the President. But if the GOP wins the 6 critical seats required to take back the Senate, they will have the threat of the nuclear option lifted and place themselves in better position to control the legislative process. The President would then surely be a lame duck for the rest of his term. All legislation including deciding what bills come to the floor of both chambers would then be in Republican hands. The change in the power structure cannot be overstated.

At that point, what would drive them to embrace immigration reform? We venture to say “nothing” since the Republicans would have further entrenched themselves against immigration reform on the campaign trail wherever that was an issue.

The other danger of waiting out two months before doing anything is that the President may wind up looking even more weak and ineffectual and not even gain the moral high ground in the eyes of many as the GOP can be counted upon to blame him for its not going forward on immigration reform because of trust issues. The current argument of the Republicans is that they do not have a working partner in Mr. Obama because they do not trust him to enforce new restrictions on immigration if reform is passed. They are even now labeling the President untrustworthy on other issues, specifically pointing out his unilaterally issuing new power plant emissions restrictions and negotiating the release of Sgt. Bowe Bergdahl in exchange for 5 high level Taliban prisoners without consulting Congress.

The President must do something positive to regain the trust and confidence of the pro-immigration forces and if he does so, they must work all out to prevent the above scenario from occurring. The stakes are too high for the Administration to take a do-nothing stance during the next two months or for those interested in immigration reform to sit on the sidelines if the President takes a positive step. The biggest complaint against Mr. Obama is that he has become the deporter- in-chief. He must take steps to shed himself of that label by designating categories of undocumented immigrants eligible for deferred action programs such as those who came into the country before the age of 16 and are now eligible for Deferred Action for Childhood Arrivals (DACA). Peter Schey in his meritorious letter to the President on April 14, 2014, proposed subgroups with special equities and long-term residence such as immigrants residing in the U. S. with already approved family and work related visa petitions, parents of U. S. citizens, immigrants with administratively close cases, immigrants with pending employment related claims, and unaccompanied abused and abandoned minors. If the President believes that he is bound by his earlier statement to await the August recess before continuing with a deportation enforcement review, he could save face by taking some other actions such as expanding the parole-in-place program to allow undocumented immigrants who are otherwise eligible for adjustment of status the ability to be paroled for that purpose. (Many who have a basis for adjustment cannot do so because they entered the country illegally or have overstayed their visas statuses). To forestall any possible questions on eligibility of the paroled aliens, the parole proof should specifically state that the parole is for humanitarian purposes under INA section 212(d)(5). The use of such a parole device would even allow those with final orders of removal to be considered “arriving aliens” and eligible for adjustment of status. The parole should also be designated a new arrival obviating questions of past illegality or allowing waivers of such. To encourage such individuals to come forward, the Administration should instruct DHS to issue an instruction that those coming to the offices of the DHS component (whether U.S.C.I.S. or ICE) to request the parole status should not be taken into custody or otherwise detained.

The other side of the equation is that such positive action must spur those favoring immigration reform to campaign in the midterm elections, especially in those states among the 12 up in the air that the Democrats have the best chance of winning. The Fox News poll showed that 61% of Republicans were interested in the midterm elections as opposed to just 55% of Democrats. And the National Association of Latino Elected and Appointed Officials (NALEO) projected in early May that 25% fewer Latino voters would turn out to vote than in the 2012 presidential election.

DACA was announced in June 2012 and helped the Democratic Party prevail in November. It would be appropriate for the Obama Administration to regard this June as a possible springboard towards its hopes in this November.

Reprinted with permission.

About The Author

Alan Lee

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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