Marielena Hincapié, Kamal Essaheb, and Ben Johnson on the US state of play

Marielena Hincapié, Kamal Essaheb, and Ben Johnson on the US state of play

(The Congress of Day Laborers, a project of the New Orleans Center for Racial Justice, where more than 300 members gathered to prepare for the April 17 Fifth Circuit of Appeals hearing on Obama's immigration action/Marielena Hincapie)

Unbound Philanthropy spoke on May 13, 2015 with Marielena Hincapié, Executive Director, and Kamal Essaheb, Immigration Policy Attorney, at the National Immigration Law Center (NILC), and Ben Johnson, Executive Director of the American Immigration Council, to hear more about the status of President Obama’s Immigration Accountability Executive Action, particularly the expansion of the Department of Homeland Security’s use of deferred action to provide temporary protection from removal for millions of undocumented immigrants currently in the US. We also spoke beyond this about their hopes for the future. This interview occurred before the US Court of Appeals for the Fifth Circuit declined to lift the injunction on Obama's executive actions. 

Taryn Higashi (TH): What do you think the ultimate outcome of the litigation is likely to be?

Marielena Hincapié(MH): We continue to believe that we are on the right side of the law and the right side of history; and NILC believes that at some point, the implementation of DACA and DAPA plus will go into effect and the courts will find that the President’s Executive Action is within his constitutional authority.

There are a number of scenarios for both the emergency request to stay the preliminary injunction and for the appeal of the Texas district court’s decision to issue a preliminary injunction. A major point to make, from our perspective, is that the suing states are trying to delay implementation as much as possible. So they will use every legal step at their recourse. On our end, we want to fast-track the litigation.

So if the stay is approved, Texas and the States are likely to appeal and that will take some months. If we win the stay and win the appeal, they will probably go to the Supreme Court to overturn the stay. If the Fifth Circuit denies the stay, that means the injunction remains in place. We will urge the Department of Justice to take the matter directly to the Supreme Court, so we could move forward with implementation as soon as possible.

We are also having conversations with movement leaders about pressuring the Administration to adopt other forms of relief while we wait. NILC is working to seek alignment in our requests of the administration. These could include setting up a simple process for individuals to use existing Deferred Action processes and robust implementation of the new enforcement priorities set forth in the President’s Executive Actions.

TH: How is the nationwide planning for implementation of Obama's Executive Action being adjusted to adapt to the litigation? What have you been telling immigrant communities?

Ben Johnson (BJ): The folks who have been working on implementation have shifted to being part of the conversation, educating people about what this lawsuit might mean. I think the new power of the immigration reform movement and the on-the-ground capacity and political organization has been on display.

In terms of what I have been telling people, there are lots of different messages: one, explaining and encouraging forward movement and preparation. I continue to believe that ultimately we will succeed in the litigation; whether that’s in time for meaningful implementation is still an open question. But ultimately, I think we will prevail on the legal merits, so we have been encouraging folks to be prepared when the opportunity comes up. Also, to be blunt, I’ve been talking to folks about how unfortunate it is that the judicial branch of government is being dragged into the dysfunctional politics around immigration, and that the judge in Texas has become another political actor in the immigration debate. If the courts are going to be a recurring battleground on immigration, then we have to be prepared to be there and to win. The good news is that the immigrant communities, that the anti-immigrant movement is so afraid of, continue to be valuable, contributing members of communities and economies all around the country, and more and more cities and states are recognizing the need to be a welcoming place for immigrants rather than buying into the politics of fear.

MH: Two additional reflections: any time I think of immigration and immigrants in particular, I think of how immigrants affect every area of society, and so does immigration. And historically, it’s not surprising that we’re in the courts. Often times, the courts are the place where we can defend our constitutional rights. I think that the immigrant rights movement has used this period to show our power, to show the strength of the movement.

TH: What strategies are being used to try to impact the litigation? 

MH: We spent three days in New Orleans before the hearing for activities organized by the New Orleans Workers Center for Racial Justice [an Unbound grantee]. The night before, there was a powerful faith vigil with a diverse set of faith leaders. The power was palpable—all these religious faith leaders pointing to the Fifth Circuit—praying directly to the judges who would be hearing the next day. The day of the rally and the hearing, it was hard to stay focused and to hear the lawyers, because the chanting from the local community members, and those that came from neighboring states, and the brass band outside, were sometimes louder than the arguments happening inside. And then there were all the immigrants themselves who were in the room. It was important to show the judges who and what was at stake, and who would benefit or who would lose from their decisions ultimately.

Kamal Essaheb (KB): I think our side has done a good job of identifying and unearthing as many potential supporters of Executive Action as possible and giving them an opportunity to write and join amicus briefs and to contribute work towards a favorable outcome in this case.

TH: Could you comment on the other benefits that the President’s Executive Action announcement contained?

BJ: I think the memos and the parts of Executive Action that are still enforced are critically important because DACA has the opportunity to change real lives, right now. The enforcement memo not only has the chance to impact lives, but the potential to give us a platform to talk about how we should be enforcing immigration law. [Immigration law] is not criminal law. This is law that impacts families that are trying to make a better life for themselves. It needs to be administered and enforced with a profound respect for the people who are caught up in the immigration system. This is a chance to demand a sea change in how we think of immigrants.

One key indicator of whether we are making progress on this would be the treatment of refugee families and children that are coming in. We must demand that they be beneficiaries of this new thinking around enforcement.

KE: I think the prosecutorial discretion memo is huge. There is an opportunity to hold the president at his word: at a town hall in Miami he said that any immigration officers who don’t follow the rules that he laid out in November are going to be held accountable. There should be a zero tolerance policy for officers not following the rules, in this case, deporting individuals who are non-priorities. I also think this is an opportunity to fully implement DACA.

TH: What do you make of Hillary Clinton’s recent statement that she would not only continue, but expand Obama’s Executive Actions?

MH: From our perspective at NILC, we feel that it’s critical that all candidates speak to these issues, because for immigrant communities in particular, they will get that soundbite on their local news.

BJ: The 2016 elections are going to be a sea change in how folks talk about these issues. Folks on the right are clearly walking on eggshells more than they ever have before—that’s more evident than any presidential election I’ve seen on the issue of immigration. This is definitely a transitional political election season where we have the opportunity to set a new tone on immigration. The more that we can define what is acceptable and unacceptable— like we have seen with the marriage equality issue or on racial issues—the more we can do that on immigration issues, the more impossible it becomes to go back to the ugly rhetoric and proposals we have seen in past campaigns. That is huge progress.

TH: Is there anything else that you’d like to share?

MH: I want to share a reminder that the investments funders have made over several decades have gotten us to this point. When you take them all together, the combination of DAPA, DACA, the workers’ rights taskforce, the immigrant integration taskforce—all amount to the most significant immigration policy changes in decades. The promise is still there. The ability to eventually implement all of them really depends on resources being there. We need to be able to defend this victory. I would urge foundations to not get scared away by the injunction. There’s probably never been more of an urgent time for everyone to be aligned to make sure this victory can become a reality for immigrants. The enforcement priorities are something we have fought for a number of years. If we can make sure that they can become a reality, and that the administration holds its agents accountable, that alone will have a significant impact on the majority of the undocumented immigrants. That, coupled with other state and local victories, is what we can achieve at the local level to improve people’s lives.