THE BLOG
10/02/2014 01:57 pm ET Updated Dec 02, 2014

Delay in Executive Action on Immigration Does Not Change GOP Culpability on Immigration Reform

In the wake of the president's announcement that executive action on immigration will be delayed by several months, it is important that we not lose track of the fact that it was the House Republicans who not only blocked immigration reform, but passed several anti-immigrant bills that would cause devastating harm to immigrants.

Shortly after the 2012 election, the Republican National Committee wrote that unless the Republican party "embrace[s] and champion[s] comprehensive immigration reform . . . [its] appeal will continue to shrink to its core constituencies only." Speaker Boehner seemingly agreed, declaring that a "comprehensive approach [to immigration reform] is long overdue." On August 1, 2014, in the dead of the night, the House GOP officially rejected that advice and reversed course, passing two of the most anti-immigrant measures in recent memory. In doing so, they made it abundantly clear that the only path forward on immigration policy at this time is through executive action.

We feared as far back as August 2013 -- when House Republicans withdrew from a bipartisan House effort to draft a comprehensive immigration reform bill -- that real legislative reform was dead for the 113th Congress. Those fears were confirmed this summer, when Speaker Boehner told the president and members of his conference that no immigration reform bill would be allowed a vote on the House floor. Instead, Speaker Boehner and the House GOP used a humanitarian crisis endangering the lives of children in Central America as an excuse to advance legislation that would eliminate due process protections from all unaccompanied children fleeing persecution and abuse; deport hundreds of thousands of "DREAMers"; and deny protections to immigrant victims of sex trafficking and domestic abuse.

The bills were drafted to appease the extreme right wing of the House GOP. Even Rep. Steve King (R-IA) boasted that the language passed by the House was "like I ordered it off the menu." H.R. 5230, nominally designed to increase funding for the border crisis, included a rider that would endanger the lives of unaccompanied children facing persecution or trafficking. Judiciary Committee Chairman Bob Goodlatte (R-VA) defended the measure by saying that it merely "tweak[ed]" a 2008 anti-trafficking law to "treat apprehended minors from Central America in the same expedited but humane fashion that we treat apprehended minors from Mexico and Canada." If true, such a bill would have been dangerous enough -- we know from the United Nations Refugee Agency that because of the diminished protections that unaccompanied Mexican children receive upon apprehension, child trafficking victims are returned to their traffickers and child victims of persecution and abuse are returned to face grave danger. But H.R. 5230 would do far more than that. The bill would subject all unaccompanied children - not just Central American children -- to even more cursory and insufficient procedural protections than those which apply currently to unaccompanied Mexican and Canadian children.

Under current law, an unaccompanied Mexican or Canadian child may withdraw her application for admission and return voluntarily to her country only after an immigration officer determines that the child can make an independent decision to withdraw such an application. This requirement prevents the return of very young children who lack the capacity to make an independent decision, as well as children with an impaired cognitive capacity.

H.R. 5230 would entirely eliminate this critical provision by striking section 235(a)(2)(A)(iii) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. The decision to eliminate this basic procedural protection is exacerbated by another statutory change contained in the Republican bill. Whereas current law limits when an unaccompanied Mexican child may be permitted to withdraw her application for admission and "voluntarily return" to Mexico in lieu of being placed in removal proceedings, H.R. 5230 ignores the voluntary nature of the return by converting a "may" into a "shall." Under the bill, if a Border Patrol agent were to conclude (typically in a cursory, 10-minute interview conducted in public) that an unaccompanied child would face neither persecution nor trafficking upon return to her home country, that agent "shall" return the child to her home country. Capacity to make an independent decision to withdraw an application for admission and the willingness to withdraw such an application both become irrelevant when unaccompanied children who fail a cursory border screening are subject to mandatory repatriation. This change would make Border Patrol agents the judges and the jurors for tens of thousands of vulnerable children.

The dire warning of the U.S. Conference of Catholic Bishops on the eve of the House vote could not have been more clear: the Republican bill "would make crippling changes to current U.S. trafficking victim protection law that we fear would send these vulnerable children, and others in the future who have fled trauma, exploitation, and violence, back into harm's way, likely resulting in continued degradation, injury, and death for many of them."

The House Republicans also passed a second bill, H.R. 5272, which the bill's sponsor, Rep. Marcia Blackburn (R-TN), claimed merely "tie[s] the President's hands as to future executive actions that he might take to expand amnesty to illegal entrants into this country" and "freeze[s] DACA." Again, such a bill would have been bad enough, cementing in place an immigration system that everyone knows to be broken and that fails to meet the needs of American families, businesses, and communities. In truth, the Republican bill would prevent Dreamers who already have received protection from deportation under the Deferred Action for Childhood Arrivals (DACA) program from being able to renew their status, thereby condemning them once more to deportation. Moreover, the bill would reduce protections under current law for immigrant victims of sex trafficking and domestic abuse.

The bill would do this by prohibiting the federal government from using Federal funds or resources "to consider or adjudicate any new or previously denied application of any alien requesting consideration of deferred action for childhood arrivals." Because deferred action is a discretionary protection from removal to which beneficiaries have no claim as of right, an application to renew deferred action is essentially a new application for deferred action. Prohibiting the use of funds or resources to consider or adjudicate new applications under DACA would end the DACA renewal process. Although some Republican supporters of the bill tried to be coy about this aspect of the bill, the text of the bill was clear. In fact, Rep. Blackburn's communications director reportedly confirmed for the Associated Press that the bill "would prevent people who currently have DACA from renewing."

Equally dangerous, H.R. 5272 would prohibit the use of Federal funds or resources to grant work authorization to any person who "was not lawfully admitted into the United States . . . and is not in lawful status in the United States on the date of the enactment of this Act." Going far beyond the purported purpose of the bill, this provision would have the effect of denying work authorization to crime and trafficking victims who assist law enforcement and other immigrants eligible for certain forms of relief (including Cuban parolees). Even worse, by denying the ability of battered immigrant spouses who have left their abusers and successfully self-petitioned for an immigrant visa the ability to work for the many months it may take for a visa number to become available, the bill would undermine a basic premise of the Violence Against Women Act - that victims of domestic violence should be empowered to leave dangerous and abusive situations. This change would prevent countless battered immigrant spouses from ever leaving their abusers, and would drive others right back into their hands.

Rather than heeding the party's own advice following the 2012 election, these mean-spirited bills demonstrate a return to the GOP's history of supporting anti-immigrant measures. In 1994, Republicans backed the now infamous California Proposition 187, which sought to prohibit many immigrants from accessing health care, public education, and other social services. In the mid-1990s and again in 2011 after taking control of the House of Representatives, House Republicans pushed language to limit birthright citizenship protections guaranteed under the 14th Amendment. When Senate Democrats and Republicans joined together in the 109th Congress to pass sensible comprehensive immigration reform legislation, the Republican-controlled House pushed legislation to make felons out of immigrant families that resulted in massive protests in cities all over the United States. And when Senate Democrats and Republicans joined together last year to pass S. 744, a comprehensive immigration reform bill, House Judiciary Republicans advanced in Committee a different proposal to turn millions of undocumented immigrants into felons overnight.

If immigration hawks in the House GOP are permitted to take our broken immigration system hostage through sheer intransigence, it is American people, American businesses, American workers, and American families that will suffer. It is ultimately up to Congress to rewrite our immigration laws, but it is the responsibility of the president to identify opportunities under existing law to faithfully execute such laws in a manner that best serves the needs of the country. And the reality is that even under our broken immigration system, changes can and should be made to make our immigration enforcement efforts smarter and more humane and to improve avenues for legal immigration. Efforts to reform our broken immigration system did not begin last year. Many of us have been working to make our system fairer and more just for well over a decade. In the meantime, countless families have been torn apart, too many American children whose parent were deported have been placed in foster care, businesses have been denied necessary workers, and immigrant and American workers have been harmed by an economy that relies heavily upon millions of workers who are undocumented and easily exploited.

We had hoped that executive action by the president would have taken place sooner, given the House Republicans' obstructionism on immigration reform and the overriding national interest in updating our immigration system. But make no mistake, when the president acts, it will be because the GOP has made it abundantly clear there is only one viable path forward on immigration.