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Update on President Obama’s Review of Deportation Policies

On March 13, President Obama directed the Secretary of Homeland Security, Jeh C. Johnson, to conduct a review of deportation policies and practices.  Its purpose was to come up with “more humane” enforcement efforts and slow down the administration’s record pace of deportations.  This would make life less stressful and anxiety-ridden for millions of immigrants who have long waited for comprehensive immigration reform.  The review was supposed to have been finished in June.  However, last month, the President surprised everyone by ordering the Homeland Security Secretary to put off the review’s completion until the end of summer.  The President justified this by saying it would allow the House of Representatives more time to act on immigration reform before the August recess and midterm elections. The response to this delay among lawmakers and immigration advocates has been mixed.  

In March, President Obama had decided the review was essential after meeting with labor groups, Latino organizations, and religious groups who were vigorously pushing for comprehensive immigration reform and were frustrated with Republican resistance to reform.  Also on everyone’s mind during those meetings were disturbing news reports about the record pace at which immigrants were being deported by the Obama administration.  Last December, the number had reached 1.9 million.  Now, it has passed the 2 million mark.  This rate is faster than that for any previous president.  Given this troubling statistic, these activist groups have been strongly urging the Obama administration to lessen, or even stop, deportations.  They cite the emotional trauma caused to families and the likely lack of opportunity for deportees to later benefit from immigration reform.    

It was reported in the media that two particular policy changes are being explored.  One would be to deport only persons who have serious criminal histories records or who pose a potential threat to public safety.  This would clearly benefit those who simply overstayed their visas or entered the country without inspection.  Many of them have dependent children, both U.S. and foreign-born, who would suffer severe hardship if their deportation orders were carried out.  To some degree, the Obama administration had already taken action along these lines in recent years by prioritizing Department of Homeland Security enforcement actions.  

The other policy change under consideration involves the Secure Communities program.  Under the program, the fingerprints of arrested noncitizens are run through federal data bases.  Noncitizens found to be in violation of immigration law are detained in a local jail until they can be transferred to a federal detention facility for deportation.  Reportedly, changes would be recommended to limit such local detentions and transfers to individuals with serious criminal records.  However, as a practical matter, this is already happening in many parts of the country as a result of recent federal court decisions: Miranda-Olivares v. Clackamas County (Case No. 3:12-cv-02317-ST) and Galarza v. Szalczyk, No. 12-3991, slip op. (3rd Cir. March 4, 2014). These courts have found the indiscriminate use of immigration detainers under the Secure Communities Program to be unconstitutional.  Also, officials like Mayor Michael Nutter of Philadelphia are issuing executive orders; local lawmakers like the New York City Council are passing laws; and many county sheriff offices are adopting policies aimed at restricting local detentions and transfers to persons who clearly pose a threat  to public safety.

As noted above, unexpectedly last month, President Obama directed the Homeland Security Secretary to hold off on finishing the review until the end of the summer.  One reason put forward by the President for this decision was that House Republicans might be more open to a compromise on immigration reform if they were not distracted by controversy over the recommendations of the review during the weeks that remain before the August recess.  
The President also said that with the primary elections coming to a close there was more of a chance now for a compromise on immigration reform because many House Republicans would no longer be threatened by Tea Party primary candidates who strongly oppose any immigration legislation granting amnesty.  Such fears were confirmed when Eric Cantor, the House Majority Leader, was upset this month in a Virginia primary election by a previously unknown Tea Party-backed candidate named David Brat. Although Eric Cantor had once expressed sympathy for immigrants brought illegally to the United States as children, during the primary campaign he boasted that he had been instrumental in shutting down plans to grant amnesty to undocumented immigrants. Nonetheless, Cantor was soundly defeated this anti-immigration Tea Party candidate.

The announced delay has drawn different reactions. Some immigrant-advocacy groups welcomed it as another opportunity to keep up the pressure on the Republicans to do something about immigration reform before the August recess.  These groups include the National Immigration Forum, the Service Employees International Union, and The U.S. Conference of Catholic Bishops.  Other groups were extremely unhappy because deportations would continue at a record pace in the meanwhile. They are agitating for  Obama to take immediate executive action to reduce deportations.  For example, Erika Andiola, an organizer with Dream Action Coalition, proclaimed that she was “appalled” at Obama’s decision.  She said, “While we keep waiting, more and more families continue to be detained and deported.”  However, White House aides worry that slowing down deportations at this time would provoke charges of abuse of executive power from Republican critics and ruin the slim chances of passing immigration reform legislation before the August recess.

An attorney named Raul Reyes, in a June 2 article contributed to USA Today, “threw cold water” on the idea that the Republicans would be willing to pass any immigration legislation offering a path to citizenship this summer.  His pessimism is based on the following: (1) The Republicans criticized the last year’s Senate Bill for being passed in 42 days, allowing inadequate time for debate.  The current legislative calendar leaves the Republicans with less time thn 42 days.  (2) The Enlist Act, which would have provided a path to citizenship for undocumented immigrants if they served in the military, was blocked by the House Rules Committee from going to the floor for a vote last month.  (3) Also, last month, the House passed a bill requiring heightened scrutiny of the Department of Homeland Security’s use of prosecutorial discretion, including those individuals benefiting from the Deferred Action for Childhood Arrivals (DACA) program.  (4) In response to the President’s decision to delay the completion of the review, a spokesperson for House Speaker John Boehner dismissed the President’s decision as “playing politics.”

Thus, it is hard to believe the Republicans will do anything positive on immigration reform this year.  As things now stand, the best hope for many immigrants in the near future may lay in the recommendations that come out of President Obama’s review of deportation policies and practices.  Unfortunately, the Republicans are likely to label whatever he does as an abuse of executive power and as an excuse to continue to do nothing to help the undocumented immigrants to acquire legal status.

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The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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