Deferred Action for the millions of individuals who will qualify under President Obama’s series of Executive Actions may have never been announced if it were not for the tens of thousands of children and young mothers who fled war zones of Guatemala, Honduras, and El Salvador in 2014.
In order to legally justify Executive Action, President Obama’s lawyers advised him that he could not ““‘consciously and expressly adopt a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc));”
At the same time, the Supreme Court of the United States has long recognized that the Executive Branch has broad discretion in whether to enforce the immigration law with respect to individuals in unlawfully present in the United States.
For the President to exercise discretion, he must be able to show there are more important priorities for enforcement of the immigration laws than the individual or individuals who are the beneficiaries of discretion.
Otherwise, the President would in effect be re-writing the laws and his actions could be construed as abdicating his responsibility to carry out his duties as the executive.
In DHS Secretary Jeh Johnson’s November 20, 2014 Deferred Action Memorandum, the importance of prioritization as a means to enable prosecution discretion was emphasized at in the very first paragraph:
“Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. “
The expansion of Deferred Action to several million undocumented individuals appeared to be huge victory for the immigrant community. But there was a caveat: Every person who unlawfully came into the U.S. after January 1, 2014 would be showered with the full might of DHS’s detention and deportation machine.
The New World: Where Deporting Children Is More Important Than Deporting Adults
Starting November 20, 2014, anyone who unlawfully entered the United States after January 1, 2014 is among the highest priority for removal from the United States.
Although Jeh Johnson states that these individuals “must be prioritized unless they qualify for asylum or another form of relief under our laws”, the reality is that the Obama administration is prioritizing everyone in this category regardless of whether they qualify for relief under U.S. law.
Starting in August of 2014, DHS and the Immigration Courts created a special court to rush the removal proceedings of unaccompanied children as well as family units who unlawfully entered the United States after January 1, 2014.
Although close to 90% of unaccompanied minors in this special court are eligible for permanent relief such as Special Immigrant Juvenile Status or asylum, the Obama administration has decided that they should be removed anyway, and that they be removed now.
The Rocket Docket
We represent close to 300 unaccompanied minor immigrants, many of whom are in the special immigration court.
We represent these children almost every day at the immigration court in Manhattan.
There are 3 judges in the New York court tasked with exclusively hearing the cases of unaccompanied minors and family units. The thousands of cases on these judges calendars were suddenly in effect administratively closed upon the motion of President Obama.
Additionally, most of the immigration countries in the country have been sent on special tours to serve as a judge for detained individuals near the U.S./Mexico border.
Just within the last couple of weeks, we were informed of what happened to the suspended cases: they were scheduled for the year 2019.
Adults who did not enter with children are having their deportations deferred to make room for the acceleration of deporting all children and family units who came to the United States unlawfully after January 1, 2014.
Government data makes it clear that an unaccompanied minor without legal representation has a approximately an 80 percent chance ordered removed from the United States. With legal representation, close to 80 percent were able to remain in the United States.
The end result is that over half of the children and family units who are eligible to remain in the United States may be ordered removed because there is not enough legal representation, both private and non-profit, available to meet the demand of representing tens of thousands of individuals within just a matter of months.
However, current U.S. law makes it impossible for President Obama to realistically deport even a small percentage of the tens of thousands of unaccompanied Central American children who entered the U.S. in 2014.
The “Rocket Docket” is a ruse because the purported goal is not achievable regardless of how much resources are spent on enforcement.
In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act, which greatly expanded procedural and substantive protections for minor immigrant children unlawfully in the United States.
Because of the change in law, the vast majority of the children that came both unaccompanied and accompanied in 2014 are eligible to remain in the United States as special immigrant juveniles or as asylees.
Moreover, DHS cannot expeditiously remove any unaccompanied children arriving from Central America because it must transfer every child to the custody of Health and Human Services (“HHS”) within 72 hours of apprehension. Once a child is in HHS custody, tHHS must attempt to reunify the child with his or her parents or closest relatives living within the United States and give the child a right to a hearing before an immigration judge.
In other words, it is virtually impossible for the Obama administration to remove even a small fraction of the unaccompanied children who entered the United States in the year 2014.
Even if the Obama administration obtained a removal order for every child in immigration court in 2014, it would be practically impossible for ICE to enforce the immigration judge’s orders because conducting massive raids where children are arrested and ripped away from family would be a public relations catastrophe and a recipe for unspeakable child abuse.
So why is the Obama administration spending so many resources on deporting a class of individuals Congress has, through procedural and substantive changes in the law, declared to be undeportable? To create a poor pretext for the legal justification behind the expansion of deferred action to millions of individuals.
When a child or baby comes with an adult, the Obama administration has not only been willing to spend millions of dollars, but also willing to criminally harm thousands of children and babies by locking them up in dangerous jails.
The Imprisonment of Babies
In October of 2014, top Senate Democrats, including Patrick Leahy, Harry Reid, Dick Durbin, and Charles Schumer, wrote a letter to President Obama expressing grave concerns regarding his decision to expand and make family detention permanent. The Senators wrote that they believed the use of the Artesia facility and the refurbishing of Karnes County Detention Center was to be temporary.
The Senators emphasized that the construction of the new mega-jail–the biggest immigration detention in the country with a capacity of 2400 bed–in Dilley Texas made it look like the practice of locking up young children and their mothers would now be a permanent fixture in the United States.
The following excerpt summarizes the Senators’ position:
We are troubled by your apparent decision to make permanent and greatly expand the policy of family detention against the backdrop of these problems.
We are also troubled by the decisions that are helping drive the demand for additional family detention beds, particularly the administration’s current practice of seeking expedited review and detention for all mothers and children arriving from Honduras, El Salvador, and Guatemala, regardless of their individual circumstances and asylum claims.
Indeed, the Senators had good reason to believe that the use of family detention was to be a temporary measure to address the unprecedented increase in mothers with children fleeing Central America for the United States.
In a July 31, 2014 press release, Jeh Johnson stated that Karnes and Artesia would “…provide temporary facilities for adults with children while they undergo removal proceedings…”
But all along it appears that the Obama administration had turned the purported Central American immigration crisis in its favor as a launching board to legally justify an unprecedented expansion of deferred action for undocumented immigrants in the United States.
On September 22, 2014, ICE announced the birth of the South Texas ICE Detention Center located in Dilley, Texas.
The facility would ultimately be able to house up to 2400 human beings, all of whom would be adults accompanied by their minor children.
In December of 2014, Jeh Johnson spoke outside of the Dilley facility to announce its opening and ensured that the New York Times was present to hear his boss’s new priorities: refugee women and children would be the highest priority for detention and removal from the United States.
Mr. Johnson also ensured that the public knew that family detention would require the expenditure of significant resources: $296.00 a day for each individual. At its full capacity, the detention center would cost over $700,000.00 per day and nearly $260 million annually.
Only days later, ICE secured the expansion of the Karnes Jail from 600 to 1200 bed. Karnes would cost approximately $355,000.00 a day and almost $130 million annually to operate at full capacity.
Therefore, the cost of family detention alone could run up to $400 million a year.
DHS’s 2015 budget elucidates how the Obama administration is buttressing the legal foundation to its executive action by a radical shift of resources from its regular detention and deportation business to that of the attacking the family unit.
For 2015, the actual number of detention beds was reduced by just over 10 percent from 34,000.00 down to 30,539.00. Yet at the same time the amount of beds for children and their mothers rocketed upwards from 100 to 3700 in less than a year.
Over 12 percent of the detention beds available to ICE in 2015 are dedicated to locking up babies, children, and their mothers. A year earlier, only 0.29 percent of ICE’s beds were allocated for the same purpose.
The cost of detention is only one part of the budget that is being reshuffled to detain babies and their children fleeing war zones in Central America.
Prioritizing Detention and Deportation Of Individuals Congress Intended To Protect
Over half of the children and their mothers from Central America who have fled to the United States in 2014 will be eligible to remain in the United States permanently under United States law through asylum and special immigrant juvenile status.
Yet the Obama administration has declared war on all of these individuals regardless of whether they are eligible to remain here permanently under our laws.
The justification behind the series of executive actions announced on November 20, 2014 is an abdication of the President’s statutory obligations. Against the intent of Congress–through its expansive legislation that aims to protect asylum seekers and children who have been abused, neglected, or abandoned–President Obama has unilaterally declared that this vulnerable group of people should be prioritized for detention and removal over that of individuals that Congress has not intended to protect through any form of legislation: specifically undocumented individuals with U.S. citizen or LPR children unlawfully in the United States.
The Just and Lawful Approach To Executive Action
Executive Action can still be done lawfully, but it requires a different justification.
The June 15, 2011 Prosecutorial Discretion memorandum (“Morton Memo”) was supposed to protect roughly the same individuals who stand to benefit from the expansion of deferred action: individuals with substantial equities in the United States with no criminal records.
However, the Morton Memo was for the most part a failure because the guidelines were not enforceable when applied to enforcement bureaucrats actions in the real world. Many of our clients were clearly eligible for prosecutorial discretion yet were denied because of erratic enforcement in the field.
As such, enforcement resources were not being spent on ICE’s so-called higher priorities of individuals who were convicted of serious crimes or who posed a serious risk to the public safety.
The only mechanism that would truly enable ICE to ensure the effective expenditure of resources to remove high priorities for removal is a deferred action program, which eliminates the waste of money spent on that was spent on individuals who were not listed priorities for removal.
Given that Executive Action as it is currently written unlawfully justifies its the prioritization of resources to detain and remove individuals that Congress intended to protect from deportation, President Obama should immediately 1. End the practice of detaining babies, children and their mothers; and 2. End the special expedited deportation courts for unaccompanied minors from Central America.