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Obama Quietly Changes U.S. Immigration Policy

News Analysis Edward Alden | , New America Now | 12/28/2009, 11:24 a.m.



The Obama administration quietly announced last week that it would overturn one of the harsh immigration enforcement measures enacted by the Bush administration following the 9/11 terrorist attacks. Beginning next month, the Department of Homeland Security (DHS) said, those who arrive in the United States fleeing torture or persecution abroad will no longer automatically be welcomed with handcuffs and months in a jail cell.

Instead, many of those seeking protection will again be permitted to live freely in the country while their applications for permanent asylum are considered by an immigration judge.

The measure is the latest in a string of little-noticed initiatives by the Obama DHS to reconsider some of the most controversial enforcement policies of the past decade. The administration in August launched an overhaul of the immigration detention system, which had grown out of control as the number of detainees doubled in just five years to more than 440,000 annually.
Some of those were simply lost in the system, while others fell ill and died due to poor medical care, and the administration has pledged to stop such abuses. That same month, it moved families out of the notorious T. Don Hutto immigrant detention facility in Texas, which had become a national disgrace after revelations that pregnant women and small children were being held there in prison-like conditions.

The administration has also largely halted workplace raids that resulted in jailing, deportation and even criminal charges for many unauthorized workers, and is focused instead on in-depth audits of companies suspected of hiring those workers. And DHS has curbed the authority of state and local police forces to demand immigration documents from anyone stopped for minor offenses like traffic violations, saying that such checks should be done only for those jailed on criminal charges, particularly for serious criminal offenses. To drive home the point, DHS in October stripped the notorious Sheriff Joe Arpaio of Arizona of federal authority to make immigration-related arrests.

The administration is walking a narrow line. The White House believes it must hold tough on enforcement if there is any hope of assembling a political coalition in Congress to pass comprehensive immigration reform next year. Janet Napolitano, the DHS secretary, says the administration has done what Congress sought on everything from the U.S.-Mexico border fence to the E-Verify system for authorizing workers, and that the time has come to enact other elements of reform, including a legalization program for many unauthorized immigrants. If Congress does not believe her claims on enforcement, the rest of the package will likely be dead on arrival.

But at the same time, the administration wants to demonstrate that it;s possible to be tough without being unfair and inhumane. The treatment of asylum claimants is just one example of where the United States had gone awry. Under guidelines enacted in 1997, once an arriving individual had shown immigration officials a "credible fear" of persecution or torture back home, he could be "paroled" into the country to await a judge's decision on his application to remain, which could take many months.

But after the terrorist attacks of Sept. 11, 2001, the Bush administration began to clamp down, arguing that those released might simply disappear, remaining as illegal immigrants and perhaps even posing a terrorist threat. According to a recent study by Human Rights First, about 40 per cent of those asylum seekers were still being paroled in 2004; by 2007 that number had dropped to just four per cent. Senator Patrick Leahy, who chairs the Judiciary Committee, called that figure "an affront to our ideals as a nation that aspires to be a beacon of light to persecuted refugees."

The Obama administration's new policy, which will end such routine incarceration, had been urged by everyone from the bipartisan United States Commission on International Religious Freedom to the United Nations High Commission on Refugees. And there is no reason to believe that the risks will rise significantly. There is considerable evidence, for instance, that alternative programs to monitor those released will ensure that they comply with whatever ruling a judge finally reaches.

Other initiatives show this more nuanced approach as well. The workplace raids, which were intended to send a warning to companies that hired unauthorized workers, mostly just hurt the workers themselves. Last year, only 13 companies were prosecuted for hiring undocumented workers. Now, the Obama administration is instead focusing on expanded audits of the paper trail that companies must keep on their workforce.

Arrests and deportations of workers are down, but hefty fines against the companies are up, providing strong incentives for them to maintain a legal workforce. This is hardly a benign approach to ask the families of the 1,800 immigrant workers who were fired from American Apparel in Los Angeles following an audit, but it marks a departure from the Bush policy of summarily jailing and deporting any unauthorized workers arrested in the raids.

The recent initiatives are only first steps, and the administration is still facing criticism from its own liberal allies that it is simply continuing the Bush administration's enforcement policies. Indeed, by any of the hard measures of detentions, criminal prosecutions, deportations, the number of Border Patrol agents, there has been no softening of the toughest immigration enforcement campaign in recent U.S. history.

Still, the changes in the last year are significant, even if they are as yet little recognized. Indeed, the Obama administration itself has not made much effort to advertise the new measures. With the tough fight looming ahead next year on comprehensive immigration reform, it is easy to understand why.

Edward Alden is a senior fellow at the Council on Foreign Relations, and the author of "The Closing of the American Border: Terrorism, Immigration and Security Since 9/11."