Border Surge Began a Few Months After Obama's First Executive Action on Immigration

Timeline: Border Surge Began a Few Months After Obama's First Executive Action on Immigration

by John Sexton

Aug 5, 2014 3:50 PM PT

President Obama's executive actions on immigration did not begin with Deferred Action for Childhood Arrivals (DACA) in mid-2012. It began in 2011 with his announcement of "prosecutorial discretion" on deportations. A few months later the border patrol noted the first uptick in unaccompanied children at the border.

There has been an ongoing argument in the public sphere over whether or not President Obama's executive action known as DACA is responsible for the current surge of unaccompanied children at the border. GOPmembers have claimed it is a contributing factor and some note that the June 15, 2012 announcement seems to coincide with the sharpest uptick in children arriving from Central America.

Progressives looking to dismiss this claim have pointed out that the first indications of a surge in the number of children took place in FY2012. Fiscal Year 2012 included the last part of 2011 as well as the first half of 2012, i.e. about eight months before DACA even existed. This, they claim, proves the problem could not have been caused by DACA. For example, this Vox explainer on whether the President's policies encouraged the trend currently reads:

while the Obama administration itself has stressed that it doesn't think DACA is a factor, officials including Vice President Joe Biden have also tried to tell Central American families that children shouldn't come because they won't be eligible for DACA — which reinforces the notion that the two are connected.

However, the influx of unaccompanied children started in the fall of 2011 — DACA wasn't announced until June of 2012.

The card's exculpatory statement about DACA is misleading. While it's true the surge of minors began before DACA, it's also true that DACA was not the first time the President used his executive authority on immigration.

A year earlier in June 2011, Immigrations and Customs Enforcement (ICE) released the so-called Morton memos. The Morton memoswere internal ICE memos which spelled out an expansion of "prosecutorial discretion" for certain individuals who might otherwise be facing deportation. This was one of the solutions to bypass Congress which progressive groups had recommendedearlier in 2011.

In August, the White House announced it would expand the use of prosecutorial discretion as outlined in the Morton Memos.  and review all current cases with an eye to separating high priority and low priority deportations. The White House announcementread in part:

Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States...Today, they announced that they are strengthening their ability to target criminals even further by making sure they are not focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home.

During the summer and fall of 2011 the promise of "prosecutorial discretion" made big waves in immigrant communities. In fact, almost immediately there was concern that disreputable people were spreading false information about what "prosecutorial discretion" would mean. On August 20, 2011, two days after the White House announcement, the American Immigration Lawyers Association issued a warning (in English and Spanish) titled "Consumer Advisory Do Not Be Misled." The advisory reads:

Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement! Anyone who says that is not to be trusted!

The American Immigration Lawyers Association was sufficiently concerned that they issued a second version of the memo four months later in December 2011.

It's clear from contemporaneous statements made by individual immigration attorneys that there was significant confusion about what the change meant. For instance, NY immigration attorney Allen Kaye said at the time, "there's a lot of misinformation about this and many people think there's a new immigration law, there's a new amnesty. No, it's just a policy."

In January 2012, California immigration attorney Shah Peerally published a videosaying, "This is something that we have been seeing a lot on our radio show. There was a new memo that came out from DHS, Department of Homeland Security, which gives what we call a new prosecutorial discretion...however some people have taken advantage of that and are claiming now that this is an amnesty." He was relying in part on the AILA warning memo.

Word of the new DHS rules also spread to regular people concerned about their immigration status. Rep. Luis Gutiérrez held atownhall event in November 2011 to describe the importance of the new prosecutorial discretion. Speaking alternately in Spanish and English Gutiérrez described it as, "a new tool, it's a new instrument and we should learn how to use it." Gutiérrez offered an example of how he believed the new rules would be applied:

"There are 300,000 people in a process of deportation right now and they all have to get reviewed. And you have to review all of those cases using new criteria...What the federal government has said is that if you're a young--if you came here when you were 3, 2, 4, as a young child and you're an adult now and you're under a process of deportation, the federal government will cancel your deportation...Everybody always claps, all I have to do is mention two words, Dream Act. Right? Everybody claps. Well guess what. If you're Dream Act eligible under the new criteria they must cancel your deportation."

Gutiérrez went on to say that the new rules were not a new amnesty but he certainly left the impression that "prosecutorial discretion" was a significant change and that many people's deportations would be cancelled as a result.

Gutiérrez was also right that the 2011 shift represented a first step toward a kind of Dream Act accomplished without Congress. The White House's executive actions on immigration are best seen as a series of changes that built upon one another toward this goal. First the Morton memos in June 2011 introduced new prosecutorial discretion to close cases on non-violent immigrants. Then in August the White House used the memos to announce a review of all pending cases under the new guidelines. Finally in June 2012 the White House announced DACA, a more formal process to defer deportation and help people gain work permits.

The suggestion that the current border crisis can't possibly be connected to the President's policies because of the timeline is simply false. The President announced a new policy in August 2011 which led to confusion and significant concern that people would be taken advantage of by those promising them work permits or amnesty. The best evidence suggests the first uptick of children at the border began about two months later in October.

It's always possible to claim this is a case of correlation not causation, but there must be a reason our efforts to combat the crisis so far have focused on public awareness about DACA in Central America. As of last month, we are spending a million dollars on these media campaign abroad. Clearly, someone in the White House believes confusion over recent policy changes is a big factor in the current crisis.

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