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The Department of Homeland Security enters 2014 with new leadership, following the confirmation this month of Jeh Johnson and Alejandro Mayorkas for  Secretary and Deputy Secretary, respectively.  Johnson and Mayorkas bring years of government service to their new jobs.  Mayorkas’ tenure as Director of USCIS led to a far more open agency that treated the public as a partner, with innovations such as public comment on policy memos, expanded public engagement opportunities, the entrepreneur-in-residence program, and the delivery of a working program to process DACA applications within two months of the president’s announcement of the program.  These successes, coupled with Johnson’s experience as the top Pentagon lawyer, promise a new direction for DHS.

As 2014 begins, we urge DHS’s new leaders to consider the following observations.

  1. Real security balances protection and benefits.   If the NSA scandal has reminded us of anything, it is that it is easy to justify violations of privacy and rights in the name of security, but in the long run, this undermines trust in the very people and organizations trying to keep us safe.  Within the immigration context, it is clear that “national security” continues to be conflated with safety, leading to a national battle over border security that frequently ignores the desires and needs of border residents.  This same mentality has led to numerous violations of rights in the name of security,  such as abuse, theft of property, and mistreatment of immigrants at the hands of CBP or the questionable categorization of persons with misdemeanor convictions as high priorities for removal.   If we are to have an immigration system that truly serves the country’s national interest, it must be imbued with respect for individuals, regardless of their immigration status.
  2. The immigration responsibilities entrusted to DHS are not simply a matter of keeping “bad” people out of the country.   DHS was born a decade ago within a Congress  still reeling from the events of September 11.  Perhaps understandably, the Department’s initial emphasis on national security led to far more attention to the enforcement functions of our immigration system than the benefits side of the equation.  In the last few years, we have seen a shift in this mindset, as the importance of immigration to our economy and our social structure becomes more evident.   While that philosophy has come to be part of USCIS, ensuring that both ICE and CBP recognize that enforcing immigration law requires creating an atmosphere that welcomes immigrants—whether they are visiting for a day or planning to make their lives here—will be crucial to changing the way we conduct immigration enforcement in this country.
  3. DHS risks alienating state partners if it insists on removal policies that destroy families and communities.  Re-thinking the relationship with states will be crucial in the coming years.   While many in Congress continue to push the need for local and state based enforcement of immigration removal laws, many states are directly challenging the notion that they exist to help DHS remove people.   New Jersey just became the most recent state to offer instate tuition to undocumented immigrants; other states have  recognized the economic and public safety  necessity of allowing undocumented immigrants to obtain driver’s licenses.  And in a direct challenge to DHS policy, more and more jurisdictions are rejecting the idea that they are obligated to detain an undocumented immigrant simply because DHS has issued a detainer notice.   The reasons for these developments are complex, but fundamentally, more and more state and local authorities are acknowledging the interconnections between undocumented immigrants and their communities.   As attitudes and perspectives change about the role of undocumented immigrants, DHS will have to adjust its own policies—particularly with respect to expanding the use of prosecutorial discretion and minimizing the separation of families—if it hopes to remain a credible player in the enforcement of immigration laws.  Moreover, as the country moves towards reform of its immigration laws, removing people who would otherwise qualify for legalization is a waste time, money, and human capital.  DHS can’t afford to be on the wrong side of history.
  4. Pressing for immigration reform should become part of DHS culture.  We have long noted that our immigration laws have become static, with little flexibility to adjust to changing circumstances.  DHS cannot do its job in the immigration arena without common sense immigration reforms that allow it to respond quickly and with compassion to political, social and technological changes.  We anticipate that Secretary Johnson and  Deputy Secretary Mayorkas will continue to argue for comprehensive and thoughtful reform.  But their real challenge will be to infuse DHS with a hunger for creative solutions to the complex, constantly changing nature of immigration.   No matter what immigration reform emerges from Congress in 2014, it will only be the beginning of change, not the end.  Re-orienting the immigration agencies to focus on how to constantly improve our laws and policies should be a top priority.
  5. The opportunity to create a national immigration policy is now.    Although the primary responsibility for immigration law and policy resides in DHS, the need for coordination and creativity stretches across the executive branch.   DHS’s new leaders have a chance to strengthen ties with other key players in the immigration world—Labor, HHS, Commerce, Education, State—to build a multi-year agenda for improving our immigration system.  While legislative change is essential, coordination and careful planning will be necessary to ensure that we create the atmosphere for immigrants to succeed in this country, for business and labor to continue to partner on new worker strategies, and for innovators and dreamers and students to find a way to call this country home.   Legislation is the first step, but without a strong government infrastructure to nurture immigration policy, we will limit our own possibilities.

A new year, new leadership, new opportunities.  It’s a huge responsibility, but the newly-installed leadership has a tremendous opportunity to reshape our immigration system in a way that recognizes creativity and honors our best traditions of individual rights.

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