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The HALT Act: Immigration Reform Under Attack

– Posted in: Immigration Reform

As I read news reports about the HALT Act, my thoughts raced to poor Desirée from the 1973 musical, A Little Night Music.

Repeatedly scorned by her sought-after lover, she lamented her misplaced loyalty.

Don’t you love farce?
My fault, I fear.
I thought you’d want what I want . . .
Sorry, my dear!
And where are the clowns?
Send in the clowns

Don’t bother, they’re here.

With the introduction of the HALT Act, the president is probably also wondering if it’s time to send in the clowns.

After a two year affair with anti-immigration legislators pushing for more border security, President Obama’s efforts to gain their support was recently rejected, in front of the entire American public, by those he passionately courted.

He failed to grasp, for those opposed to immigration reform, there is no room for political compromise.

But like Desirée, he doesn’t need to bother looking for clowns.

They’re already here.

Why The HALT Act Is An Insult To The President

A few weeks ago, Rep. Lamar Smith (R-Texas) introduced legislation named “Hinder The Administration’s Legalization Temptation Act.”  Known as the HALT Act, Smith’s bill is a direct slap at the Obama administration.

If passed, the bill would restrict the authority of the president to exercise discretionary relief on behalf of immigrants until January 22, 2013, the day after the next president is sworn in.

Shortly after John Morton, Director of Immigration and Customs Enforcement, issued a call for the use of deferred prosecution for immigrants, allowing those who qualify an opportunity to complete the green card process, the anti-immigrant forces struck quickly.

Calling Morton’s proposal a push for back door amnesty, Smith asserted the administration needed a reminder the founding fathers put Congress in charge of setting the nation’s immigration policy.

(To be sure, Smith overlooked the long standing powers of the president to decide how, and against whom, to enforce federal immigration laws, but in the political arena, perception is often more important than reality.)

In essence, Smith not only challenged, but also insulted the president in a stark maneuver rarely seen in modern politics.

The Obama administration, emphasized Smith, “cannot be trusted with these powers.”

And, in fact, Smith’s bill does not attempt to permanently restrict the authority of the presidency to exercise discretion on behalf of immigrants.  Rather, it simply restricts the authority of Obama’s presidency.

Smith needn’t be worried.

ICE Discretion Missing In Action

After the Morton memo was issued, various immigration reform advocates rushed in to applaud the Obama administration’s new direction.

Being a deportation defense lawyer who lives on the front line of immigration wars, I was unwilling to join their celebration.  My conscience prevented me from giving ICE the benefit of the doubt.

I asserted, in “The Morton Memorandum: More Empty Talk Or The Real Deal This Time?”, the culture of an organization cannot be transformed overnight.  A mere memo is not sufficient to change how an agency like ICE, long trained to see the world as us versus them, treats its immigrant subjects.

Unfortunately, nothing in the past six weeks has modified my view.

On the contrary, my view has been reinforced by an increase of ICE activity in apprehending, detaining, and removing immigrants from the United States.

There have been few, if any, signs of discretion being granted to immigrants.

Smith’s fears of government leniency are grossly misplaced.

Why, then, such political grandstanding?

Immigration Restrictionists And Political Theatre

It’s hard to image Smith and his cronies don’t already know the real situation on the streets and in the jails.

After all, most immigration advocates have lost faith in the administration’s promises to fix our broken system.

Deportations are being made at a record-breaking for the third straight year during Obama’s term of office.  Local law enforcement officers, despite misgivings about community relations, are being mandated to work with their federal counterparts to seek out as many undocumented immigrants as possible.

Meanwhile, Obama tells voters it’s not his fault.

Yet, when democrats had a clear numerical majority, the president failed to push any immigration issues forward.  Now, having lost his political advantage, he blames the GOP for the absence of reform, while he disclaims any executive authority to suspend deportations for highly deserving immigrants, especially young college students.

But if the president openly dismisses his legal ability to utilize discretion in a positive way for immigrants, why is Smith so adamantly seeking to limit such powers?

Smith, like other restrictionists, use immigration as a wedge issue to posture for the next round of elections.  They’ll pander to the public about how they are combating the wave of undocumented immigrants crossing our borders every day.

They’ll blame Obama – even though Obama has been no friend to immigration reform.

It’s political farce at its best.

What Is The HALT Act?

To put it bluntly, the HALT Act represents the worst in American anti-immigration politics.

Here’s a short recap.

Family Visas and Permanent Residence

The HALT Act would not allow the Department of Homeland Security to waive the 3-year and 10-year bars to readmission for immigrants who have been unlawfully present in the country, as is done now in rare cases of hardship.  This would have a grave effect on immigrants who, though otherwise qualified for permanent residence through family-based petitions, have lived in the U.S. without permission longer than 180 days.

Humanitarian Parole

The HALT Act would not allow DHS to grant temporary humanitarian parole, which allows an immigrant to enter the United States on a temporay basis for for urgent humanitarian reasons, as when a legalized family member is dying, or significant public benefit.

Deportation And Removal Defense 

The HALT Act would not allow immigration judges to grant cancellation of removal in deportation cases.  Even though the standards are already restrictively high, Smith’s bill would ensure that unless undocumented immigrants can qualify for benefits, right now, not tomorrow, they will be immediately removed from the United States.

Temporary Protected Status

The HALT Act would not allow DHS to designate countries, undergoing a severe disaster or other dire situation, for Temporary Protected Status (TPS), which allows immigrants from those countries, already in the U.S., a form of temporary protection.  This would include residents from countries like Haiti, which experienced a massive earthquake last year.

Employment Authorization

The HALT Act would not allow USCIS to grant employment authorization to immigrants who fall under any of the above-mentioned forms of relief.  This would have a devasting impact on many immigrant families.  For example, TPS beneficiaries are allowed to apply to work here legally while their temporary period of protection remains valid.  Under the Smith proposal, they would be allowed to live here but not to economically sustain themselves.

Deferred Action/Prosecutorial Discretion

Last but not least, the HALT Act would prevent DHS from granting deferred action.  This was the focus of the recent Morton memo on prosecutorial discretion.  As a result, ICE would be stripped of its ability to delay prosecution against a person, except in limited circumstances like when an immigrant’s life is in imminent danger.

From my standpoint as a San Diego immigration attorney, it’s clear that the true purpose of the HALT Act is to eliminate, indirectly if not directly, almost every form of relief available to immigrants.

The Act goes far over and above the president’s discretion.  It also cuts off DHS, USCIS, and immigration judges from granting benefits to immigrants.

Don’t you love political farce?

By Carlos Batara, Immigration Law, Policy, And Politics