If Obama must delay deportation review, relief for unauthorized immigrants should be bold and broad

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Over the past five years under President Obama's leadership, the U.S. immigration enforcement system, including its main tools of migrant detention and deportation, has vastly expanded into a "formidable machinery" that has expelled unauthorized immigrants at a record pace — a total of approximately 2 million in five years. A year ago, the Senate made progress toward fixing the system by passing a bipartisan comprehensive immigration bill that would reform almost every aspect of the immigration system, including legalization and a path to citizenship for unauthorized immigrants. But the effort has stalled in the Republican-controlled House of Representatives, whose leadership has failed to seriously consider overhauling immigration laws, either by debating the Senate bill or a similar version of it introduced by House Democrats, or by voting on their own narrower reform proposals.

While the executive branch has made some notable administrative improvements to the immigration enforcement system via the Department of Homeland Security (DHS), its operation is still too often irrational and inhumane. Detention conditions are often deplorable, there's a shortage of immigration judges, and non-criminal immigrants who get caught driving without a license get deported if they're ensnared in the federal deportation dragnet known as Secure Communities. Moreover, the vast majority of unauthorized immigrants are employed in our labor market, living in fear of deportation if they speak out about unpaid wages or unsafe workplaces, which lowers wages and degrades labor standards for everyone.

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That's why the time has come for Obama to take executive action to remedy the situation, as he did when he created the Deferred Action for Childhood Arrivals (DACA) initiative, which spared from deportation half a million young unauthorized immigrants who were brought to the United States as children. Although the president doesn't have the authority to legalize unauthorized immigrants, there's still much more he can do to prioritize the removal of criminal immigrants and spare otherwise law-abiding immigrants from deportation.

In March, responding to complaints and intense pressure from key elements of his base about the deportation of workers, family members and immigrants with deep ties to their communities, Obama ordered a review of his administration's current deportation policies with the aim of making them more "humane." But two months later the president decided to delay releasing the results of the review until the end of this summer, to give Republican leadership in the House additional time to craft and vote on immigration reform proposals of their own.

The announcement irked many in the reform movement because the House has shown few signs of commitment to addressing immigration at all. It also caused friction between reformers and organizations who wish to see deportations slowed immediately, and some who — while supporting the same goal — nevertheless requested that the president delay his announcement to give the House one final opportunity to come up with a legislative solution. Both sides have a point. The fear and suffering experienced by unauthorized immigrants who are separated from their families is acute and ongoing, but any remedy that isn't fleeting and ad hoc requires legislation. And while there's only the slightest chance that the House will vote on any immigration proposals this summer, it's crystal clear that executive action to slow the pace of deportations will eliminate that chance altogether.

Well then, is it worth it to delay? Maybe. On the one hand, the only actions the House has taken have made matters worse, like the bill the House passed to restrict the president's use of prosecutorial discretion, which could result in the end of DACA. But on the other hand, if the president waits until the autumn to take executive action, it will remove any excuse House leaders have to blame the failure to pass immigration reform on Obama or the Democratic Party — and more importantly — strengthen the president's justification for taking executive action. That's little consolation to the approximately 97,000 unauthorized immigrants who will likely be deported in the interim or the family members they'll be separated from indefinitely. But since Obama has opted to delay, if there's no movement towards reform in the House this summer, he should be emboldened to direct the DHS to implement a reduction in deportations that is as big and broad as allowed by his powers under the Constitution and existing law, while still respecting the separation of powers between the executive and legislative branches of government.

What would "going big" look like? While there are a number of administrative adjustments that can be made to the system, the most important components are deportation relief for those without serious criminal records who are married to, or the parent of, a U.S. citizen or legal permanent resident, and for the parents of young unauthorized immigrants who have already been granted relief from deportation under DACA.

The blame for unauthorized immigration cannot be pinned on the immigrants alone. Major elements of American society abetted the creation of the unauthorized immigrant population, including major industries such as agriculture, which came to rely on unauthorized workers. For two decades, U.S. employers recruited and illegally hired workers from abroad for low-wage jobs with impunity. Unauthorized immigrants entered the country without inspection at the border in order to take those jobs, or overstayed temporary visas. The U.S. government also played a major role: Democratic and Republican administrations ignored the problem and failed to adequately enforce existing laws. Congress itself set the problem in motion when it passed an immigration reform law in 1986 that included a paper-based "I-9" employment verification system that is easily susceptible to fraud and difficult to enforce. And the legalization program the law included wasn't nearly broad enough; it failed to legalize millions, which left behind the core of today's unauthorized population.

Employers, immigrants, and the government must now share the blame equally. But only Congress can permanently remedy the situation, and it must do so without forcing immigrants to suffer while absolving itself and employers of responsibility. The Senate has done its part by negotiating a complex compromise, but the House of Representatives has failed to address the issues in a serious, responsible way. As long as the House fails to act, Obama is justified in taking executive action to drastically reduce the pace and number of deportations. 

Costa is the director of immigration law and policy research at the Economic Policy Institute, a think tank in Washington. You can follow him on Twitter at @costadaniel.

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