As Hope for Reform Fades, Administrative Action Becomes More Likely

On June 30, President Obama made remarks in which he criticized the failure of House Republicans to “stand up to the Tea Party in order to do what’s best for the country” and pass an immigration reform bill. He said that he would begin a new effort “to fix as much of the immigration system as I can on my own, without Congress.” He directed DHS Secretary Jeh Johnson and Attorney General Eric Holder to move resources to the border, and to make additional recommendations by the end of the summer, after which he will adopt those recommendations “without further delay.”

The president made this announcement after he was informed that Republicans would block a vote on an immigration bill at least for the remainder of the year.

While we don’t know what the administration will do, a number of groups have listed options available to the president. For example, this paper from the Center for American Progress lays out a number of actions that could be taken, including enforcement reforms, affirmative relief, deferred action, parole in place, and deferred enforced departure.

Predictably, congressional Republicans reacted negatively. Speaker Boehner issued a statement saying that he told the president that immigration reform cannot move forward because “the American people and their elected officials don’t trust him to enforce the law as written.” However, it is the inaction of House Republican leaders that has led to the current situation. “The American people” are demanding action, and Speaker Boehner has signaled that his caucus will not offer a solution to the immigration problem that has plagued this country for so long.

Whatever executive action is offered will fall far short of a true policy fix that can only come through legislation. With the legislature failing to legislate, it falls to the president to use his authority to mitigate the problems caused by that failure.

States Find Ways to Accommodate Their Immigrant Residents

With Congress once again failing to tackle immigration reform, states must continue  to cope with a broken federal system. In the past few years, there has been a remarkable shift in state and local immigration actions. In 2010. Arizona made headlines by passing the harshest immigration enforcement laws in the country, and these laws became a model for other states, such as Alabama. These enforcement laws have, for the most part, been struck down by the courts.

In their wake, states and large-population metropolitan areas have been changing their laws to better accommodate their undocumented residents, and to attract new immigrants.

Rejection of ICE Detainers

There have been a number of federal court rulings that have caused local jurisdictions to decide they will not hold individuals when Immigration and Customs Enforcement (ICE) issues a detainer for the individual. ICE detainers are requests for local enforcement entities to hold an individual for an additional 48 hours beyond the time they would otherwise be released. Some individuals have been held much longer than 48 hours when ICE fails to assume custody in that timeframe. Courts have found that this amounts to a violation of the constitutional rights of the individuals held, and local jurisdictions can be held liable.

In reaction to these court decisions, and due to the hard work of immigrant advocates around the country, approximately 100 state and local jurisdictions around the country are no longer honoring ICE detainers, or are doing so only in limited circumstances. This has had real consequences in the number of deportations ICE has been able to conduct. For example, statewide legislation was enacted in California last year, the TRUST Act, prohibiting local law enforcement officials from detaining immigrants longer than necessary if they had not been charged with or convicted of a serious offense. The Associated Press surveyed California sheriff departments and found that, in the first two months after the TRUST Act became effective, there was a 44 percent drop in the number of persons held for deportation. The 15 agencies that responded to the AP survey included four of the state’s largest five counties. Prior to the TRUST Act, California accounted for one third of deportations arising from the federal “Secure Communities” program.

Some jurisdictions in California have since instituted policies that go beyond the TRUST Act regarding ICE detainers. The Los Angeles Police Department, for example, will not honor a detainer request without a judicial review. Other jurisdictions limiting their cooperation with ICE include Philadelphia, several counties in Oregon, several counties in Washington, Denver, and many others.

Reacting to this backlash, the administration is reviewing the Secure Communities program.

Drivers License and College Tuition

In May, Washington, D.C., became the latest jurisdiction to begin issuing drivers licenses to individuals regardless of immigration status. Licenses for undocumented immigrants will be differentiated from standard licenses by including the words “NOT VALID FOR OFFICIAL FEDERAL PURPOSES,” in order to comply with REAL ID standards. The District joins California, Illinois, Connecticut, and several other states in allowing undocumented immigrants to be licensed on the road.

In early June, Republican Governor Rick Scott of Florida signed legislation allowing undocumented immigrant residents of the state to pay in-state tuition for state colleges and universities. In his signing statement, Governor Scott said,

Making sure all Floridians have access to an affordable higher education is one of my top priorities. Signing this historic legislation today will keep tuition low, and allow all students who grew up in Florida to have the same access to affordable higher education.

Earlier in the year, Virginia Attorney General Mark Herring ruled that undocumented students protected by the DACA program would be eligible for in-state college tuition. The decision potentially affects more than 8,000 Virginia residents.

In all, at least 18 states have provisions allowing in-state tuition for undocumented students, as of mid-June of 2014.

On July 10, New York City Mayor Bill de Blasio signed legislation that will make the city the largest jurisdiction to offer municipal identification cards with less stringent requirements than drivers’ licenses. Among other things, the ID card is meant to make it easier for undocumented immigrants to access the banking system. New York will join New Haven, Connecticut, as well as Los Angeles, Oakland, and San Francisco, California, in offering such identification cards.

A More Comprehensive Approach

The lack of action on immigration reform by Congress for so many years has left states trying to figure out how to attract new immigrants and how to accommodate undocumented immigrant who have been residents for many years.

For undocumented immigrants, legislators in New York State are taking a more comprehensive approach with legislation that would grant “state citizenship” to certain residents regardless of immigration status. State Senator Gustavo Rivera, and Assemblyman Karim Camara introduced the New York Is Home Act. This bill would provide drivers’ license, in-state tuition and tuition assistance, and would prohibit compliance with ICE detainers and limit state cooperation with ICE in other ways. The bill would also qualify individuals for Medicaid coverage and for professional licensing. It would grant state and local voting privileges (but not federal), and it would allow individuals covered by the Act to serve on juries and to hold civil office. To be eligible, individuals would have to prove identity and three years’ residency and tax payments. They would have to pledge to abide by New York laws, serve on juries, and continue to pay taxes. The state legislation could not change federal law so, for example, undocumented immigrants could not be given authorization to work.

The legislation was introduced late in the session, and did not pass, but it is an interesting package that could serve as a model for other states and localities looking for a temporary fix to solve the problem of congressional inaction.

Beyond the accommodations for undocumented residents, states and localities are developing strategies and sharing ideas to make their places more welcoming to immigrants. Michigan Governor Rick Snyder recently called for attracting 50,000 skilled immigrants to Detroit over five years. Immigrants would have to live and work in Detroit, where they would provide a great boost to that bankrupt city. In Massachusetts, Governor Deval Patrick has launched the Global Entrepreneur in Residence Program that will seek to attract foreign students who graduate from Massachusetts colleges and universities—who normally would be required to leave the U.S. These and other initiatives might require Congress to act, due to our currently inadequate visa quotas for skilled immigrants, but they add to the pressure for reform.

According to the group Welcoming America, there are currently 81 communities across the country with initiatives to make their communities welcoming to immigrants. That means that one in eight people in the U.S. live in communities that are trying to be immigrant-friendly. Should Congress postpone immigration reform for another year or two or three, we can expect states and localities to continue to take the lead in making much of the U.S. a more welcoming place for immigrants.

This article was written for the National Immigration Forum, and a version appeared in the Forum’s Immigration Policy Update.