True and lasting immigration reform must come from Congress. Last summer, the Senate passed a bill that included ramped-up border security, mandatory employment verification, visa modernization, a legalization program and citizenship initiatives. House Republican leadership has blocked that reform.
Activists criticize President Obama for high deportation levels. Immigration and Customs Enforcement (ICE) belongs to the executive branch, but it works under a congressional mandate to meet quotas for detainees. As the number of immigrants with serious criminal or immigration problems dwindled, ICE became more aggressive. This harmed individuals, families and communities.
In June 2011 cognizant of the damage caused, ICE issued guidance on exercising prosecutorial discretion to focus on high-priority cases. That guidance has taken hold though strong, principled advocacy has drawn attention to exceptions.
In June 2012, the Obama administration announced the program of deferred action for childhood arrives (DACA), which essentially amounted to prosecutorial discretion at a systematic level. DACA has helped alleviate some problems and anxiety, but it remains temporary. Only Congress could make it permanent.
Detentions and deportations have serious consequences. When those ICE actions seem unwarranted, the effect can be catastrophic for individuals, families, businesses and communities.
Across the United States, town, cities and states have begun to resist. Some local governments have started to apply ICE detainer requests only to those with serious criminal problems. States have resisted Secure Communities, which involves fingerprint and database sharing. Many argue this would make places less secure.
Salt Lake City Police Chief Chris Burbank and other law enforcement leaders have spoken against delegating police with general immigration authority. Burbank emphasizes the danger of racial profiling and the chilling effect on police-community relations.
Even Arizona seems to have turned on immigration. Three years after the state legislature passed enforcement-only legislation, Arizona’s two Republican senators, John McCain and Jeff Flake, championed and voted for broad immigration reform.
The slow pace of immigration reform has led some activists to call on Obama to halt deportations. This would essentially extend prosecutorial discretion to 11.7 million undocumented immigrants. Because DACA was effective for youth, it would be so for the rest of the undocumented.
Stopping deportations is attractive, but it is problematic for legal, political and structural reasons. The exercise of prosecutorial discretion generally depends on the facts of individual cases. Systemic use can apply, as it did for DACA. But for DACA, there were specific legal and practical concerns laid out in the rationale.
Stopping deportations would amount to presidential refusal to execute the law. Though the Supreme Court might be reluctant to step into the clash between Obama and the Congress, the legal case is complicated.
The political problems would stem from lawsuits and arguments that shifted the focus from the need for immigration reform to the propriety of the executive action. Predictable consequences include more polarization among the politically active and increasing disgust in the general public. Divisive politics is not a recipe for good policy.
Despite the painful realities of immigration, unitary politics from Obama is not a good recipe either. We should be careful not to concentrate more power in the executive and disturb balances that tend to self-correct over time.
Criticize Obama for having broken his word on pushing immigration reform in 2009. Advocate continued resistance to ICE and Secure Communities. Keep the focus on the goal of immigration reform. Urge the House of Representatives to finish the job that individuals and organizations began over a decade ago.
Mark Alvarez is an attorney, immigration specialist for Telemundo Utah and host of "Sin Rodeos."
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