Obama's Order Sets Up Campaign-Season Battle Over Immigration
President Obama spun the campaign focus back to immigration today with a deftly timed order that puts in place deportation protections for young illegal immigrants in the face of a stalled DREAM Act.
Under the new rules effective immediately, those who demonstrate they meet the following criteria will be eligible for a two-year deferment from any immigration enforcement action and be eligible to apply for work authorization: came to the U.S. under age 16, have continuously resided here for 5 years, not older than 30, currently in school or have graduated from high school or have been honorably discharged from the armed forces, and have not been convicted of a felony or "significant" misdemeanor.
"The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship," the morning DHS announcement stated. "Only the Congress, acting through its legislative authority, can confer these rights."
And it's just that which had much of the Hill up in arms over the new policy.
Janet Napolitano told reporters in a morning conference call that the move helps ensure that future immigration enforcement is focused more on high-risk illegal immigrants, defined as those who have committed crimes such as theft or assault and those who have repeatedly crossed the border.
"This is not immunity, this is not amnesty; it is an exercise of discretion," she said, calling it "prosecutorial discretion" that is within the bounds of the law.
"I continue to urge Congress to pass the DREAM Act and re-examine our immigration system as a whole," Napolitano said. "We should not forget that we are a nation of laws and a nation of immigrants."
However, while the administration framed it as a decision thoughtfully planned since the department received guidelines in 2010 for the use of prosecutorial discretion, the rules were announced without the mechanism in place yet to process the potentially 800,000 eligible applicants. A senior administration official said today that it would take about 60 days to get the application mechanism up and running.
Despite this suggestion of being a rush decision, a senior administration official said that the deferment action was "just the next step in the use of prosecutorial discretion."
"We don't consider this a permanent solution for anyone," one official said as the administration used the announcement to launch fresh calls for Congress to pass the DREAM Act. "Presumably some future administration can make a decision on this population."
If Mitt Romney won election in November, he could reverse the order -- though that would not affect any two-year stays granted between now and then. With a potential shift in policy on the horizon, the administration officials were asked what incentive young illegal immigrants not yet discovered by authorities would have to come out of the shadows.
"I wouldn't say we are encouraging people to step forward," one official said, adding it was a question "best directed to the community affected" by the new rules.
The rules bear hints of recent Republican DREAM Act alternatives offered by Rep. David Rivera (R-Fla.) and a forthcoming proposal by Sen. Marco Rubio (R-Fla.) -- bills that have threatened to set up an intraparty clash with the anti-illegal-immigrants stalwarts in the GOP.
But Obama's move is also clearly an attempt to steal the spotlight from these alternatives.
Rivera's bill, introduced two weeks ago with a student who has been facing a deportation order, has the same age and length of residency requirements as the DHS rules. It's stricter in that it requires admittance to an accredited four-year college. Upon graduation, a student could apply for a five-year visa renewal, followed by applying for permanent residency and eventually citizenship.
Rubio's plan, which is due by the end of the summer, takes a "very different approach" to Rivera's, in the words of the senator. It would not include a path to citizenship while giving illegal immigrant students a visa to stay in the U.S.
The Florida senator, who could become No. 2 on a ticket with DREAM Act opponent Romney, in a statement today focused on the means by which the administration implemented the changes.
“There is broad support for the idea that we should figure out a way to help kids who are undocumented through no fault of their own, but there is also broad consensus that it should be done in a way that does not encourage illegal immigration in the future. This is a difficult balance to strike, one that this new policy, imposed by executive order, will make harder to achieve in the long run," Rubio said.
“Today’s announcement will be welcome news for many of these kids desperate for an answer, but it is a short term answer to a long term problem," he added. "And by once again ignoring the Constitution and going around Congress, this short term policy will make it harder to find a balanced and responsible long term one.”
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