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4 Ways Obama Can Reform Immigration By Himself

Getty Images/Chip Somodevilla

President Barack Obama is done waiting. After a year spent hoping that Speaker John Boehner and House Republicans would pass immigration reform—and following a conversation with Boehner confirming that the House would not act this year—Obama on Monday set in motion the machinery for acting on his own. Specifically, he instructed Department of Homeland Security (DHS) chief Jeh Johnson and Attorney General Eric Holder to give him recommendations, by the end of the summer, for executive actions he can take on immigration reform. But what could those actions look like? Here’s a quick rundown:

1. Expand the Deferred Action for Childhood Arrivals (DACA). Obama took executive action in 2012, granting children of undocumented immigrants a temporary reprieve from deportation. This was effectively the unilateral implementation of the DREAM Act. As Nora Caplan-Bricker wrote for The New Republic in March, an expansion of DACA is the most likely course of action for the Administration right now.

It’s unclear how far President Obama could go with such a move. DACA’s legality rests on “prosecutorial direction.” DHS—and more importantly, the Immigration and Customs Enforcement division within it— has only limited resources to find and deport undocumented immigrants. To use those resources most effectively, DHS and ICE must focus on certain sets of undocumented immigrants, such as felons. Under DACA, DREAMers received written notification that they will not be targets for law enforcement, because they are such a low priority. That doesn’t give them citizenship, but it does give them assurances that they will not be deported.

Immigration reform advocates have been pushing Obama to expand DACA for months now, but it’s unclear how far he could actually expand the program. To stay on the right side of the law, the federal government must ensure that it is using prosecutorial discretion legitimately. In other words, DHS and ICE cannot just to choose to stop deportations altogether. That would not be an effective use of resources. It would be ignoring them altogether. All Obama could do is expand DACA to include other low-priority groups of undocumented immigrants, like parents of DREAMers or workers contributing to the economy.

2. Reform the Secure Communities fingerprint program. DHS runs the Secure Communities program to identify immigrants in jail who are eligible for deportation. The program has come under criticism from many officials for capturing too many offenders and noncriminals. In May, Johnson told PBS, “The program has become very controversial. And I told a group of sheriffs and chiefs that I met with a couple days ago that I thought we needed a fresh start. And this is a conversation I have been having with a number of mayors and governors."  Johnson could include such reforms in his recommendation to the president.

3. End state and local law enforcement’s role in determining enforcement priorities. The AFL-CIO has recommended that DHS “reassert the primary role of the federal government in determining and implementing enforcement priorities by ending programs that effectively delegate those responsibilities to state and local law enforcement.” In 2011, the White House attempted to lay out who, among undocumented immigrants, was high-priority and who was low-priority. But the document, known as the Morton Memo, was widely ignored by local law enforcement, making it ineffective. That eventually led to DACA, but AFL-CIO wants to ensure that the federal law enforcement agencies, not state and local ones, are making determinations over enforcement priorities. They propose eliminating programs including Secure Communities and the Criminal Alien Program, which provides ICE with biometric evidence to facilitate deportations.

4. Mass pardons. Obama could also grant mass pardons to the millions of undocumented immigrants. This wouldn’t give them citizenship, but it would allow them to stay in the United States legally. Obama certainly has the authority to do so, but it’s hard to imagine him taking such action, given the few pardons he has granted throughout his presidency.