On November 20, 2014, US President Barack Obama used his executive authority to make sweeping, if non-permanent, changes to the US immigration system without legislative action by Congress. The resulting immigration executive actions delay the deportation of more than four million unauthorized migrants living in the United States. To qualify for the new category of deferred deportation, migrants must have been living in the United States for more than five years without certain criminal convictions and have US citizen or legal permanent resident children. Obama also de-prioritized the deportation of some categories of unauthorized migrants and streamlined the process for people with US family members to obtain visas to stay in the country legally. Through 11 separate memorandums from various cabinet secretaries that oversee different parts of the immigration system, among other changes, President Obama announced plans to:

  • Allow some unauthorized migrant parents of US citizen or permanent resident children of any age the opportunity to remain in the United States for three years, through a program called “Deferred Action for Parental Accountability” (DAPA);
  • Allow many unauthorized migrants who entered the US as children to remain in the country, expanding the Deferred Action for Childhood Arrivals (DACA) program by eliminating its upper age limit;
  • Change how US immigration officials decide which unauthorized migrants to deport;
  • Focus the program of information-sharing between local police and federal immigration authorities (previously known as “Secure Communities”) on people arrested by police who also fit within new deportation priorities.

These are important and laudable initiatives that promise to reduce abuses against many unauthorized migrants and their families. However, they leave intact many policies that violate migrants’ rights. Human Rights Watch has called for broader reform to US immigration laws to ensure that they respect and protect families, protect migrants from crime and workplace violations, focus enforcement efforts on genuine threats, and ensure due process rights. The following Q&A explores the human rights impact of President Obama’s executive actions in each of these areas, highlighting what remains to be accomplished as the new Congress begins its work and the Obama administration enters its final two years in office.

I. Respecting and Protecting Families

1. What human rights concerns are raised by providing temporary status for members of some migrant families?

2. President Obama announced that the government would be deporting “felons, not families.” Isn’t that an appropriate way to create rights-respecting immigration policy?

3. What’s wrong with prosecuting and deporting recent border crossers?

II. Protecting immigrants from crime and abuse

4. How do the executive actions affect relations between immigrants and local police?

III. Focusing enforcement efforts on genuine threats

5. Isn’t it appropriate for the president to increase funding and personnel for protecting the border?

6. How do the executive actions change immigration detention policies?

IV. Ensuring due process rights

7. Do the executive actions improve migrants’ due process rights?

 

I. Respecting and Protecting Families

1. What human rights concerns are raised by providing temporary status for members of some migrant families?

A:  The temporary relief from deportation provided by the executive actions should protect several million people from the corrosive threat of deportation. It will enable parents to send their kids to school with the confidence that they’ll be there to pick them up when school is over. People who qualify for temporary relief from deportation will be able to apply for work authorization. They’ll be able to go to work, stand up to employers who refuse to pay them, or worse, and call the police or an ambulance if they need to without fear of being deported.

Nonetheless, unauthorized migrants who apply for and are allowed to remain in the US under the DAPA or DACA programs will have only temporary status, dependent on executive policies that can be changed, even as they continue to build families and lives in the United States. Their very tentative legal status will leave them at risk of deportation in the future. In addition, the executive actions will leave them subject to revocation of status and removal due to convictions for even very minor crimes, regardless of their family ties in the United States.

2. President Obama announced that the government would be deporting “felons, not families.” Isn’t that an appropriate way to create rights-respecting immigration policy?

A:  It is not. All families are entitled to a fair hearing in which their right to live together as a family is weighed against the government’s interest in deporting them, and that includes the families of persons with felony convictions.

In announcing the reforms, President Obama said: “[O]ver the past six years, deportations of criminals are up 80 percent. And that's why we're going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who's working hard to provide for her kids.”

This pronouncement does not reflect the situation faced by many people. The “criminals” the Obama administration wants to deport include people convicted of relatively minor offenses, such as shoplifting, simple possession of marijuana or cocaine, traffic offenses, or reentering the United States after being previously being deported. Under current US law, many such convictions are considered an “aggravated felony.” The immigration officials and courts overseeing the deportations of people with “aggravated felonies” are powerless to take into account the circumstances of each individual's case—they must treat the immigrant as a dangerous criminal and order the person removed from the US for life. Those who re-enter the country illegally after a conviction for such “aggravated felonies” can face up to 20 years in federal prison.

People convicted of “aggravated felonies” may have lived in the United States since childhood and may have strong family ties to US citizens. They may have been lawful permanent residents, and the crime may have been relatively minor. Even people who have served out their punishment and have been law-abiding for many years have no hope of getting right with the law—only the prospect of detention and deportation.

By Human Rights Watch’s calculations, 72 percent of non-citizens deported for criminal convictions from 1997 to 2007 were deported for nonviolent offenses. More than one million family members were affected by these deportations. Given that more than two million people have been deported under the Obama administration, the number of families torn apart is now probably much higher.

The executive actions do not substantively alter this reality. The new policies disqualify from temporary legal status and continue to prioritize for deportation “convicted felons,” persons convicted of a “significant misdemeanor,” people convicted of three or more separate misdemeanors (excluding traffic and status-related violations), anyone apprehended at the border, migrants who entered unlawfully or were issued a final order of removal on or after January 1, 2014, and people who have “significantly abused” visa programs. While the executive actions provide discretion to immigration officials to stop the deportation of small numbers of migrants meeting specific criteria, it is unclear whether and how often they will use their discretion to stop the deportation of immigrants with family members in the United States. It is likely that thousands of families will still be torn apart by the existing deportation policies of the United States and the new priority categories set forth under the executive actions.

3. What’s wrong with prosecuting and deporting recent border crossers?

A:  As detailed above, the executive actions place top priority on deporting people apprehended at the border. This is a misleading priority—people trying to return to their families in the United States, some after living many years in the US without incident, are being lumped into the category of recent border crossers. Human Rights Watch has documented how significant numbers of parents of US citizen children—an estimated 101,900 across the two years of 2011 and 2012—are apprehended and summarily deported at the border. Though many of these parents might have qualified for deferred deportation were they still in the US, President Obama’s plan does not provide relief to them if they are caught trying to re-enter the country to rejoin their families. To the contrary, the plan prioritizes migrants apprehended at the border for deportation. Although border agents under Customs and Border Protection will be able to consider “compelling and exceptional factors” in making deportation decisions, it remains to be seen whether and how agents will use this discretionary power.

The executive actions also did not reduce damaging federal prosecutions for illegal entry, a misdemeanor, and for re-entry, a felony. Criminal prosecutions for entering or re-entering the US illegally are the most common prosecutions in the US, and sweep up thousands of people with deep ties in the country. Those convicted can be prioritized for deportation because of their immigration status alone.

II. Protecting immigrants from crime and abuse

4. How do the executive actions affect relations between immigrants and local police?

A:  It’s not clear whether the program will help or hurt trust between immigrants and local police. The executive actions replace an immigration enforcement program known as Secure Communities, which the Obama administration has recognized undermines immigrants’ trust in law enforcement. Secure Communities required local law enforcement agencies to share fingerprints they collect with federal immigration authorities. Immigration and Customs Enforcement (ICE) could, on the basis of this fingerprint data, request that a local law enforcement agency detain (or “hold”) a person for immigration enforcement purposes, sometimes beyond the time allowed under criminal law.

Human Rights Watch has documented how local law enforcement collaboration with federal immigration enforcement through programs like Secure Communities harms public safety and makes immigrants vulnerable to abuse, including in agricultural work and in meatpacking. For example, female farmworkers who were raped by their employers told us that they were afraid they would be deported if they reported the crime to local police.

The executive actions replace Secure Communities with a new Priority Enforcement Program (PEP). Under the program, immigration officers will no longer use “holds” to access immigrants detained in local jails except in “special circumstances.” It is not yet clear how ICE agents will interpret “special circumstances.”

Instead of holds, ICE will request that police notify them of release dates so that ICE agents can be ready to pick up the person as they leave police custody. Under the new program, these requests for notification will apply to all migrants who are prioritized for deportation due to their criminal histories, as well as many recent border crossers. Under PEP, immigration enforcement authorities will still have access to the biometric data and personal details of anyone arrested by local police. We are concerned that the new program will be insufficient to reverse immigrant communities’ fear that going to local law enforcement personnel like police will end in their deportation.

III. Focusing enforcement efforts on genuine threats

5. Isn’t it appropriate for the president to increase funding and personnel for protecting the border?

A:  Under the executive actions, funds will be redirected to bolster border enforcement and DHS will commission three joint task forces that will be responsible for the southern border and West Coast. In addition, President Obama has asked Congress to provide funding for 20,000 additional Border Patrol agents.

Increasing funding and personnel for border protection would not be problematic from a rights perspective if robust measures were in place to prevent abuses and hold border patrol personnel accountable for misconduct. Unfortunately, Human Rights Watch and others have documented continuing Border Patrol abuses, including the use of excessive, sometimes unnecessary lethal, force; unacceptable detention conditions; racially motivated arrests; coercive interrogation tactics; and the refusal to allow detainees who have asylum claims access to the relevant processes.in the media and by advocacy groups have found that, when abuses occur, accountability mechanisms are ineffective. None of the executive actions address the lack of oversight and accountability of the Border Patrol and its parent agency, Customs and Border Protection.

6. How do the executive actions change immigration detention policies?

A:  Each year, the US Immigration and Customs Enforcement agency holds about 400,000 people in some 300 US detention facilities across the country, at an annual cost of $2 billion. These people are not imprisoned as punishment for criminal offenses, but rather are detained for civil immigration violations. A lot of them stay locked up for months, some for years, waiting for a court hearing or deportation. Too many are detained without regard for whether they are actually dangerous—which most aren’t—or a flight risk. They are being held unnecessarily, at great cost to themselves, their families, and US taxpayers.

Life inside detention centers can be grim. Human Rights Watch has documented harmful detention of asylum seekersand children, inadequate medical care, physical and sexual abuse (often unaddressed by authorities), poor living conditions, and very limited access to legal representation.

The executive actions include directions for immigration enforcement officers not to detain immigrants who are “suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.” Despite this guidance, the administration has separately instituted large-scale detention of children and their parents as a means of deterring border crossers from Central America, many of whom are seeking asylum. It has shown no signs of reforming this policy. In fact, recent statements by Obama administration officials make clear that it is likely to continue subjecting more children and families to extended periods behind bars. In addition, existing immigration detention laws, such as mandatory detention requirements for many categories of migrants, remain in place despite the executive actions.

IV. Ensuring due process rights

7. Do the executive actions improve migrants’ due process rights?

A:  The executive actions don’t improve migrants’ due process rights. They make no changes to the administration’s problematic policies allowing the summary deportation of asylum seekers arriving at the border without sufficient assessment of whether they are being sent back to serious risk of harm, nor those that promote the detention of recently arrived families. The executive actions also do not improve immigrants’ access to counsel in deportation or asylum proceedings. While there is no right to free representation in immigration proceedings, a variety of executive branch policies make it especially difficult for immigrants to find free legal assistance, to win release from detention, and to defend against deportation. These policies include arbitrary decisions to deny migrants bond, and the widespread problem of transferring detainees to facilities far away from their lawyers and communities of support. The president could have addressed these due process flaws through executive action, but did not.