‘Discretion’ or ‘Amnesty’? Border Security Still a Contentious Topic
By Tim Starks
CQ Roll Call Staff
Barack Obama is trapped in a vicious cycle with Congress on border security and immigration. Unable to move a comprehensive immigration overhaul, the president has implemented a number of policies and programs meant to secure the border separating the United States and Mexico, such as prioritizing the removal of illegal aliens with criminal backgrounds or who are deemed to pose a national security risk.
But Republicans don’t think those policies are making the border any more secure — and in some cases, they argue, Obama is making things worse. Before they will embrace any kind of immigration overhaul, the GOP has set the precondition that the border must first be secured.
The tensions are deepening as some Republicans grow increasingly worried about an unholy alliance between forces in Latin America and Iran — with the alleged plot last year by an Iranian-American to hire a Mexican drug cartel to assassinate the Saudi Arabian ambassador in Washington, D.C., as their prime example of the interconnectedness of global defense and immigration policy.
The Obama administration’s own border and immigration policies are ratcheting up those tensions. In a January speech, Homeland Security Secretary Janet Napolitano laid out all the steps the administration was taking to secure the border in lieu of a comprehensive immigration bill. “None of these actions substitute for statutory reforms,” she said. “But we can, we have and we will seek to enforce the law in a way that best meets our needs and our ideals.”
Some of them are explicitly focused on national security, the secretary declared: “We have improved and automated the process for identifying individuals applying for or in possession of a visa who may pose a national security or public safety risk.” And some are more about economic matters: “We’ve also focused on employers who hire illegal labor and, by doing so, unfairly compete with employers who play by the rules.”
And some of this administration’s steps have been aided by Congress, despite the gulf between the two parties on border security. Although it was President George W. Bush who began multiplying the size of the Border Patrol, Obama has continued requesting funding increases to bolster the force, and Congress has supported it with additional funding. A Border Patrol that numbered 10,000 in 2004 now stands at more than 21,000.
Napolitano said all of the administration’s steps are working. Border Patrol apprehensions are down 53 percent during the past three years, she said, a sign that fewer people are trying to cross the border illegally. “The Obama administration has undertaken the most serious and sustained actions to secure our borders in our nation’s history,” she said. “And it is clear from every measure we currently have that this approach is working.”
Where Are the Goal Posts?
What’s clear to Napolitano, though, is not as clear to Republicans. Particularly contentious is the policy the administration describes as “prosecutorial discretion,” where the administration focuses on removing criminal aliens or those who pose a national security risk. But what the administration calls prosecutorial discretion, the GOP labels “administrative amnesty.”
The policy, Republicans argue, could encourage an increase in illegal immigration. “It has the potential to send a signal to illegals considering coming here that as long as they don’t commit a crime, they’ll probably get away with it,” said Rep. Candice Miller (Mich.), who chairs the Homeland Security Subcommittee on Border and Maritime Security.
Rep. Elton Gallegly (R-Calif.), who chairs the Judiciary Subcommittee on Immigration Policy and Enforcement, also described the issue as one of a fundamental devotion to the rule of law — and the negative consequences of what happens “when the leader of the country decides on what laws he likes and what laws he doesn’t like.”
The top Democrat on Gallegly’s subcommittee, Rep. Zoe Lofgren (Calif.), defended the administration policy.
“We have the capacity to deport 400,000 people a year,” she said. “Who are those people going to be? The people who want to harm us. We’re going after violent criminals and terrorists before we go after the wives of veterans or kids who are 2 years old. Those priorities make a lot of sense.”
Republicans also contend that the Obama administration is playing games with the numbers when citing how strong it has been on border security.
“Their idea of a deportation is telling someone you’re not legally here and order them out of the country,” Gallegly said. “My definition of deportation is to remove someone from the country.”
Even while Republicans disagree with many of the things Obama is doing administratively on border security, they say there are other things he should be doing but is not.
The arrest last month of a Moroccan man living in the Virginia suburbs of Washington, D.C., for allegedly plotting to carry out a suicide attack on the Capitol illustrated one such instance. The man, Amine el-Khalifi, entered the United States in 1999 on a tourism visa that expired the same year and has been living here illegally ever since.
The problem is not a new one, Miller said. “Visa security is an integral component of border security,” she said. “It’s easy to remember, certainly, that during 9/11, four of the hijackers were here through student visas — they obtained them legally and overstayed their visas.”
For its part, the administration has said it’s working on a biometric visa exit system, but it is a costly endeavor. “I think biometric entry is well on its way,” Napolitano told the House Homeland Security Committee in February. “Biometric exit is a much different kettle of fish, in part because our ports were not designed to have biometric equipment in the exit lanes. That’s just one of the many reasons.”
In the interim, Napolitano said, the department has combined “a number of different databases for very, very layered and robust biographic information … at the exit stage” for tracking overstays.
Miller also said the administration has not adequately focused on the border with Canada. And Gallegly said the administration has cut back on worksite enforcement aimed at cracking down on employers of illegal immigrants.
Congressional Democrats argue that Obama has managed scarce resources as well as he can. “When you look at what we’ve done there and ask, ‘Can we do more?’ The answer is ‘always,’” said Rep. Henry Cuellar (Texas), the top Democrat on Miller’s subcommittee.
But Cuellar cited figures pointing to decreased violence in cities along the border and the deployment of advanced technology such as aerial drones as evidence that Obama has done a great deal. “Republicans always say, ‘Secure the border, secure the border,’” he said. “Every time we do something, it’s not enough. They keep moving the goal posts.”
Legislation’s Prospects Aren’t Good
One outside expert, Seth Stodder, who served as director of policy and planning at Customs and Border Protection during the Bush administration, said Obama’s policies in lieu of an immigration overhaul bill have been effective when it comes to border protection. “There’s been a continuation of Bush policies and, in some cases, an intensification of them,” said Stodder, now a senior fellow at George Washington University’s Homeland Security Policy Institute.
On the national security front, Stodder cited lesser-noticed border protection measures such as increased information sharing with Canada and Mexico on potential threats.
It is on border enforcement where there is more worthwhile debate, he said. Stodder said some of the Obama administration policies — such as “prosecutorial discretion” — make sense and are not unique to Obama. On complaints about workplace enforcement, Republicans have a more valid argument, according to Stodder.
Prospects for passage of immigration legislation are virtually nonexistent in the short term.
When Democrats controlled Congress, prospects might have been better, but party leaders never made it a priority. Cuellar said Congress and the administration were preoccupied with other matters, notably the health care overhaul and the economy.
“We lost a window of opportunity and this is what we kept insisting to the president,” he said. “We’ve never done it, and now it’s too late. In my opinion, the window of opportunity has closed. We probably have to wait for the 2012 elections to see what happens to see if we’re at a much better place.”
Stodder said that because both parties have such a diversity of views about immigration, enacting a bill would be difficult regardless of which party controls Congress after the elections.
And Miller said the dynamic has changed since the last big push by Bush for a comprehensive immigration bill.
The Mexican drug cartels have sparked new worries about the ramifications of not adequately securing the border, she said, and some administration policies — especially “administrative amnesty” — have made the chances of reaching agreement more difficult. “When we see all those kind of things, and I think the Congress is a reflection of the majority of the public, we’re really not interested in a really comprehensive immigration law until we have a high degree of comfort securing the border,” she said.