Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, and his colleague in the Senate, Sen. David Vitter (R-LA), have outdone themselves this time. The mocking title of their most recent anti-immigrant bill, the “Hinder the Administration’s Legalization Temptation Act,” or HALT Act, is almost too absurd to take seriously. But the legislation would have dire consequences for our immigration system’s integrity if passed by taking away the immigration agencies’ discretion in making decisions related to the detention and removal of immigrants and, under certain circumstances, providing relief.
Legislation to hinder the “temptations” of another branch of government is a bizarre concept, and the suggestion that the administration is “tempted” to legalize the undocumented population is disconnected from reality.
First, the president can’t “legalize” undocumented immigrants. The most he can do is delay their removal from the country for compelling reasons. Second, this administration has deported more immigrants than any administration in a generation. So there’s some cognitive dissonance when immigration restrictionists continue to claim that the Department of Homeland Security, or DHS, refuses to enforce the law and is pursuing a stealth amnesty agenda.
More disturbing than the deluded rationale for this bill, however, are the legislation’s intended effects. If the HALT Act became law, it would eliminate the last few crumbs of compassion that remain in the immigration code.
The most obvious symptom of our broken immigration system is the fact that we have 11 million undocumented people who are living here and are working and integrated into our communities. The president has correctly said on numerous occasions that everyone bears some blame for this situation: the immigrants themselves, of course, but also the businesses and families that hire them and the government’s prior inability to regulate the border and worksites.
But we can’t enforce our way to a solution. And as we try to do so, the human casualties pile up: The lives of hundreds of thousands of U.S. citizens, legal permanent residents, and undocumented immigrants have been destroyed by our inability to get this right.
In the meantime, one of the few saving graces to prevent even more harm and hardship to U.S. families is the existence of narrow categories of discretionary relief still available to DHS. For instance, when DHS determines that an undocumented immigrant has been here for more than 10 years, has been a person of good moral character, and their removal would cause “exceptional and extremely unusual hardship” to their U.S. citizen spouse, the immigration law authorizes the agency to cancel the removal of that person. The HALT Act would foreclose that and similarly narrow avenues for relief.
The authors and supporters of the HALT Act, however, are wedded to a fantasy that undocumented immigrants will up and leave the country if we make life harsh enough and treat immigrants and their families shabbily enough. This bill’s goal of scrubbing all discretionary relief out of the immigration system is mean spirited and counterproductive. Blinded by anti-immigrant zeal, their efforts to handcuff DHS will make us less safe. It will be harder for our agents to effectively prioritize the removal of gang members over hard-working mothers and children.
What the HALT Act does
Starting with sweeping legislation in 1996, immigration hardliners have tried to strip immigration agencies of their discretion to make decisions related to the detention and removal of immigrants. Those efforts have succeeded in making the system incredibly rigid and preventing immigration authorities from making common sense decisions based on the equities in individual cases except under the most narrow of circumstances.
This bill drives that strategy to its logical conclusion by attempting to bar virtually all forms of discretionary relief. No longer would DHS be authorized to grant a waiver allowing the undocumented wife of a soldier serving in Afghanistan to remain in the United States. No longer would the president be empowered to allow the nationals of a country experiencing a catastrophic natural disaster such as the Haiti earthquake to temporarily remain in the United States.
The proponents of this legislative broadside justify it with their favorite platitude: We must protect the “rule of law.” But that muscular extenuation fails to obscure the strange, almost delusional rationale for this bill. It suggests a world of absolutes where unyielding adherence to a written rule produces the right outcome 100 percent of the time. And it fits nicely with the restrictionists’ favorite catchphrase: “What part of ‘illegal’ don’t you understand?”
The problem is that in the real world, decisions about right and wrong are rarely black and white, and flexible laws are a hallmark of justice. By eliminating the vestiges of flexibility that remain, this bill would:
- Prohibit extreme hardship waivers for family reunification of unauthorized spouses and children of U.S. citizens or legal permanent residents. The undocumented wife of a citizen soldier returning from the war in Afghanistan, for example, would be barred from the United States for at least 10 years without any recourse whatsoever. These waivers are a cornerstone of the current immigration system, not a radical measure.
- Bar immigration authorities from granting temporary admission to individuals for urgent humanitarian reasons or significant public benefit. So it would bar the brother of a U.S. citizen dying of kidney disease from entering the country and donating his kidney.
- Prohibit cancellation of removal for individuals of good moral character who have lived here for more than 10 years and can show that their removal would cause “exceptional and extremely unusual hardship” to their U.S. citizen or legal permanent resident spouse, parent, or child. For instance, the breadwinning undocumented father and husband of a U.S. citizen spouse and children who overstayed his visa 15 years ago and who now is relied upon to support a handicapped child would not be eligible to have his removal reconsidered.
- Block the secretary of homeland security from designating or redesignating a country experiencing a dangerous armed conflict or a natural disaster for Temporary Protected Status. If the Haiti earthquake occurred after this bill passed, for example, the president could not have granted Haitian nationals a temporary reprieve from returning to their ravaged homes.
- Prevent the secretary of homeland security from granting “deferred action” to individuals who are a low enforcement priority. Without it, the high school valedictorian brought here without papers as a toddler, who gets pulled over for a broken taillight and put into removal proceedings, would be treated on par with a violent felon who recently crossed the border.
- Block the secretary of homeland security from granting employment authorization to, among others, any beneficiaries of the above forms of relief.
Why it’s a problem
The narrow forms of relief that the HALT Act suspends are Congress’s recognition that in certain circumstances the equities of an individual case outweigh a rule of general applicability. Congress, in those narrowly defined instances, has authorized immigration authorities to evaluate the circumstances of a case and make a decision as to whether relief should be granted. Providing narrowly tailored exceptions to a general rule is an acknowledgment that rigid adherence to the rule may subvert other values and the interests of justice. This bill sacrifices those values at the altar of an ideological agenda.
Cutting off relief for disaster victims and for military spouses significantly sets back the interests of justice, but the simultaneous effort to block the secretary of homeland security from providing deferred action to low-enforcement-priority individuals also undermines effective law enforcement. The exercise of discretion in deciding which cases to investigate, prosecute, or settle under existing civil and criminal law, including immigration law, is fundamental to the American legal system.
Indeed, such discretion is exercised every day by every single law enforcement agency in the world. Why? Because enforcement agencies must prioritize their use of resources to be effective. That, in turn, means that they must clearly articulate their policy priorities and then guide their practices and operations in a way that most effectively represents those priorities.
And we already have guidelines for immigration enforcement. In two recent memos Director of Immigration and Customs Enforcement John Morton prioritized the apprehension, detention, and deportation of violent criminals first while making noncriminals with strong equities the lowest priority. The HALT Act’s attempt to prevent the administration from using tools that facilitate these important prioritization decisions is irresponsible.
Transparent partisanship
This bill raises troubling political questions as well. It is an undisguised and personal attack on the power of President Barack Obama. The bill only suspends these statutory provisions and DHS’s discretionary authority until the next president is inaugurated. In other words, this bill seeks to undermine President Obama’s power and not the power of the presidency itself. And that triggers serious concerns about the use or misuse of the legislative process for a partisan agenda.
What’s more, the hypocrisy in this endeavor is appalling. The New York Times recently reported that in 1999 Rep. Smith, the HALT Act’s sponsor in the House, wrote to the attorney general and the commissioner of the Immigration and Naturalization Service arguing in favor of the exercise of prosecutorial discretion. He argued “that ‘unfair deportations’ had caused ‘unjustifiable hardship’ for otherwise law-abiding immigrants who had jobs and families and close citizen relatives. ‘True hardship cases call for the exercise of discretion,’ the letter said.”
And in a twist almost too rich to be true, the sponsor of the companion legislation in the Senate is none other than Sen. Vitter (R-LA), the same senator who only by the grace of (you guessed it) discretion did not suffer serious penalties for procuring prostitutes. How quickly they forget.
In other words, this charge to strip compassion from the system is being led by a congressman who previously requested the exercise of more discretion and a senator who has personally benefited from the exercise of prosecutorial discretion. I’ll leave it to the reader to discern whether these tensions can be reconciled.
Conclusion
We are, of course, a nation of laws, and those laws must be enforced. Large-scale undocumented immigration has thus understandably caused deep public frustration. The unsurprising legislative reaction to those concerns has been to throw more enforcement resources at the problem and enact stricter laws. But for reasons we’ve elaborated elsewhere, this enforcement-centric strategy will not restore the rule of law on its own. Strong enforcement mechanisms are necessary but insufficient components of a plan to create a rational legal immigration system.
The only way to effectively reform our immigration system is to amend our laws to ensure they comport with 21st century economic realities and deal realistically with the 11 million undocumented immigrants already here. They will have to pay a stiff penalty for violating our laws, but no one except the most extreme hardliners believes that we can drive 11 million people and their millions of U.S. citizen spouses and children out of the country without trampling on our core values and decimating our economy. So far Congress hasn’t been able to muster the political courage needed to meet these challenges.
Meanwhile, the human toll mounts and our immigration agencies need the authority to exercise more discretion in preventing injustice—not less. The HALT Act has the interim solution exactly backward.
Marshall Fitz is Director of Immigration Policy at the Center for American Progress.
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