What Did Hillary Really Propose on Immigration?

Washington Post (Plum Line)

By Greg Sargent

May 6, 2015

What did Hillary really propose on immigration? 

There has been a great deal of excitement about the remarks Hillary Clinton delivered late yesterday to immigration advocates in Nevada, with a number of folks concluding on Twitter that she vowed to expand President Obama’s executive actions shielding millions from deportation. That’s what I first thought, upon hearing her comments.

But after reading them again, and talking to a couple of immigration experts, it’s not clear to me she proposed that at all.

To be clear, Clinton deserves credit for staking out a strong stand on immigration: She said nothing less than fair and equal citizenship for the undocumented would do. She flatly declared that Republicans advocating for legal status are in effect advocating for “second class” status. And she stood solidly behind the executive actions Obama has moved forward with: DACA, which temporarily shields from deportation people brought here illegally as children; and the much bigger and more recent DAPA, which shields parents of children who are U.S. citizens and legal residents.

But she did not propose to expand those executive actions — to the parents of DREAMers or anyone else —  and this distinction matters a good deal in policy terms. Here’s what she said:

“If Congress refuses to act, as President I will do everything possible under the law to go even further. There are more people — like many parents of DREAMers and others with deep ties and contributions to our communities—who deserve a chance to stay. I’ll fight for them too.

“The law currently allows for sympathetic cases to be reviewed, but right now most of these cases have no way to get a real hearing. Therefore we should put in place a simple, straightforward, and accessible way for parents of DREAMers and others with a history of service and contribution to their communities to make their case and be eligible for the same deferred action as their children.”

That sounds like a call for expanding DAPA to cover the parents of DREAMers, but it actually isn’t quite that. The distinction turns on the meaning of “deferred action” status. That status has been around for decades, and is awarded on a case-by-case basis to some who apply for it. It includes work permits. But this status exists independently of DACA and DAPA, which are essentially something approaching categorical grants of that status to particular classes of people. (They are not quite categorical grants, but that’s too deep in the weeds for our purposes.) In other words, plenty of people who are not covered by DACA and DAPA can still apply for deferred action status, be considered for it, and receive it.

Clinton didn’t definitively say that as president she would award what amounts to a quasi-categorical grant of deferred action status to parents of DREAMers. Rather, she said she would seek to improve the process by which parents of DREAMers can apply for existing deferred action status, which (as mentioned above) they can already do.

“All of us walked away from this thinking she is going to expand DACA and DAPA, but it’s not clear she would do that,” prominent immigration attorney David Leopold, who favors such an expansion, told me. “She didn’t explicitly call for expanding Obama’s current executive actions. She didn’t say, ‘I’m going to expand DAPA to the parents of DREAMers.’ What she did say is there should be a simple process in place by which people who have been here a long time can apply for deferred action. But that wouldn’t mean a categorical grant.”

This distinction matters, because under this framework, it would be less clear that applicants might end up getting approved. It would also potentially be less politically explosive than expanding DAPA, since it is the quasi-categorical nature of DAPA that has attracted much criticism from Republicans who say Obama’s actions are lawless.

“This could be less politically controversial,” Leopold says. “It could avoid taking this into the uncomfortable political territory of expanding DAPA.”

To reiterate, this doesn’t mean Clinton did not stake out an ambitious position on these matters. She absolutely did. As Leopold adds, she did vow to use executive authority to improve the process in ways that would likely result in more parents of DREAMers gaining temporary protection from deportation. “That alone says the landscape has shifted,” Leopold says.

But it just isn’t the same as affirmatively calling for an expansion of Obama’s executive actions. And the difference matters. In truth, it’s not quite clear what Clinton is envisioning here. More clarity from Clinton would be helpful.

For more information, go to:  www.beverlyhillsimmigrationlaw.com