Getting Real On Immigration

Congress shows no signs of passing legislation to fix our convoluted immigration laws. Indeed, despite much discussion on Capitol Hill and much public debate, Congress has passed no broad revision of immigration law since the 1990s. So President Obama is taking matters into his own hands and changing immigration policy by executive action.

That this is a good way for our government to address the question of what to do about illegal immigrants is doubtful. In my mind, legislation is the better way.

Last week, Department of Homeland Security Secretary Janet Napolitano wrote to Assistant Senate Majority Leader Dick Durbin, an Illinois Democrat, to say that she is instituting "a case-by-case review of all individuals currently in removal [i.e., deportation] proceedings to ensure that they constitute our highest priorities."

This means that individuals who have been notified that they must leave the United States
may get a reprieve. That may sound like a break for them, but it is a two-edged action. It would put such people in a legal limbo with no status, no work permit, and no authorized duration of stay.

Ms. Napolitano, it seems, has moved beyond the government's broad authority to decide early in an immigration case whether or not to prosecute. It is generally agreed that the government can decide whether to prosecute an undocumented immigrant. Once people are in deportation proceedings, it is most unusual for the Department to review the cases.

Ms. Napolitano's rationale is that her immigration staff, which cannot possibly deport the estimated 11 million illegal immigrants in this country, needs to focus its resources on the most important cases, namely immigrants with criminal convictions.

However, immigrants with criminal convictions are relatively easy to deal with, because they are just told to leave. What is harder and more time-consuming is to judge whether someone with a misdemeanor who has overstayed his visa should be allowed to remain.

Ms. Napolitano wrote to Senator Durbin because he is a cosponsor of the Dream Act (formerly the Development, Relief, and Education for Alien Minors Act). That bill that would give permanent residency and eventual citizenship to people under 30 who came to America as children and who attained certain education levels or served in the U.S. military.

Once they became citizens, these people could then sponsor their parents for citizenship. The new regulations announced by Ms. Napolitano would amount to de facto implementation of the bill. New citizens under the Dream Act would number an estimated 100,000 to 200,000, according to Mr. Durbin's office, and an estimated 2.1 million, according to Alabama Senator Jeff Sessions, ranking Republican on the Senate Judiciary Committee.

The question, then, is whether it is desirable for the Executive to make an end run about Congress. My own view is that it is not, even though I agree with many of the goals of the regulations.

The Dream Act has not come up for a vote in this Congress, either in the Republican House or the Democratic Senate. Last December, in the lame-duck session of the previous Congress, when the Democrats had a majority in the House, that body passed it, 216 to 198. In the Senate, the bill failed to get the 60 votes necessary for floor consideration.

Ms. Napolitano's letter formally implemented a June 17 memo written by John Morton, director of immigration and customs enforcement at the Homeland Security Department.

That six-page memo is a guide to prosecutorial discretion in immigration enforcement cases. It lists 19 factors to consider in deciding whether illegal immigrants should be prosecuted, including level of education, criminal history, and length of time in America .

Eight of these factors call for "particular care and consideration from prosecutors." They
are people who are sick; who are disabled; minors and elderly individuals; women who are pregnant or nursing; veterans; long-time permanent residents; those who have been in America since childhood; and victims of sex trafficking.

According to Tom Fitton, president of Judicial Watch, a group that investigates and prosecutes government corruption, the legality of the new approach is suspect, though he expects the administration will insist it is merely exercising "prosecutorial discretion."

Ms. Napolitano omits entrepreneurs from her list of persons to get special consideration. However, this omission is remedied by action by Alejandro Mayorkas, chief of U.S. Citizenship and Immigration Services, alsoa unit of Homeland Security. In July, he unveiled a plan to expand the use of three visa categories to attract more entrepreneurs.

This is on more solid legal ground and does not appear to be a departure from precedent. The visa categories already exist for skilled immigrants. The Department is just expanding the definition of skilled immigrant to entrepreneur, which does not appear to be out of line with congressional intent. Only 22,000 of the 65,000 H-1B visas for fiscal 2012 have been allocated, so fewer skilled immigrants are being admitted than was planned.

It is clear that it would be impractical and costly to deport 11 million illegal immigrants. And immigration reform, however divisive, is crucial to economic growth. Making it easier to get lawful entry helps the economy. Today, entering the country legally, whether as a tourist, student, entrepreneur, or worker is a lengthy, bureaucratic, and often expensive process.

But executive decisions to take immigrants out of deportation procedures and leave them in legal limbo are no substitute for immigration reform. Congress needs to step up to the plate and pass new immigration laws that are in tune with our economic times.