This week, the Center for Migration Studies (CMS) published a podcast with Cecilia Muñoz, Assistant to the President and Director of the White House’s Domestic Policy Council. In the 35-minute discussion between Muñoz and CMS Executive Director Donald Kerwin, Muñoz talked about a variety of topics regarding immigration—including the Obama administration’s successes and failures, the future of immigration reform and what this will all mean going forward.
The podcast began with Kerwin asking Muñoz what were the most positive and disappointing moments of the last eight years.
“The biggest and most obvious disappointment is that we didn’t get an immigration bill through Congress. It wasn’t for want of trying,” Muñoz said. “We got a strong bipartisan bill through the Senate in 2013 and we were pretty confident that we had the votes for it in the House, but we could not get the House to take it up. So that is a source of huge frustration because we now know what it would mean for the country, just in economic terms, what it means in terms of reducing the deficit and growing GDP. That’s all quantified because we had the Congressional Budget Office, it took a look at the Senate bill. So the easily greatest source of frustration is that.”
After talking about how the Obama administration had streamlined certain visa processes within the Department of Homeland Security, Muñoz addressed the issue of priority enforcements, a topic immigrant rights groups have criticized.
“For the first time, this administration is making choices on setting priorities for enforcement.” Muñoz explained. “That hasn’t happened before in the immigration arena. And it’s tremendously important. The Department of Homeland Security and its predecessor, the INS, never had a strategy, never had an approach, never had priorities. The priorities exercise and this notion that you want this law enforcement agency, which is I think is the largest in the country, to apply the same law enforcement principles to its job than police agency around the country does is a huge and very important innovation.”
In response to the questions about why the Obama administration didn’t prioritize immigration reform in 2009 and 2010, Muñoz said the following:
“I disagree with the premise of the question. We did prioritize immigration reform. What we didn’t do was find a bipartisan group willing to bring it up in the Congress. The President held —I think folks forget— bipartisan, bicameral meetings. He tried to get allies in Congress to get this conversation started and did not get any takers. Except in 2010, when we got the DREAM Act up for a vote, and it passed the House of Representatives for the first time. It failed in the Senate, largely because Republicans who had previously voted for the DREAM Act, and in some cases, co-sponsored it, didn’t vote for it, which is why it’s not the law today. But we did prioritize immigration reform, but what we didn’t have were allies in Congress willing to move it forward. Not until 2013.”
Muñoz said that it wasn’t unusual to have a small group of Democrats vote against the DREAM Act in the Senate, citing that historically a small group of Democrats has always voted against immigration. However, she did say that it was unusual to see Republican co-sponsors of the DREAM Act who didn’t vote for the 2010 version of the bill. Muñoz thought that the politics got in the way and in the end, the failure of not passing the DREAM Act “hurt a lot of people.”
When answering a question about the record number of deportations under the Obama administration and whether the emphasis on deportation was a strategy to build support for legislative reform, Muñoz did not agree and explained:
“When you swear an oath to uphold the law, you have to uphold the law. And so, the administration, the DHS, was doing its job. And if you follow the clearest indicator of what the removal numbers are likely to be, is generally the appropriations process in the Congress. So the reason that the numbers were higher in the Obama administration than they were in the Bush administration was because Congress had allocated a lot more money to this function. The priorities turned out to be tremendously important, so there are first efforts to put enforcement priorities in place started in 2010. And frankly, the agency refined them over time because it took a while for them to produce what the agency was hoping for, which was people in the removal pipeline who were serious offenders.”
“And so the changes and revisions, which ultimately resulted in the enforcement priorities that were part of the President’s executive actions in 2014,” Muñoz added, “were really the result of attempts that ultimately didn’t produce what the agency was hoping for, and one of the indicators, and this when Secretary [Janet] Napolitano was in charge of DHS… one of the indicators that she was looking at was, ‘Did DREAMers end up in the pipeline?’, and if they were ending up in the pipeline, it was an indication, because they were clearly low priorities for removal. That was an indication that the priorities weren’t working very well. And that’s why you ended up with DACA [Deferred Action for Childhood Arrivals]. Right, DACA is an exercise of enforcement authority by DHS. Having named folks who are their high priorities, DACA is an effort to get folks who are low priorities out of the pipeline all together.”
The conversation then moved to President-elect Donald Trump’s claim that he would immediately deport two to three million undocumented immigrants who have “criminal records.”
When asked about that claim and what the actual number is, Muñoz explained:
“It’s impossible to know for sure the total number of folks with convictions in the undocumented population, but what I do know is that it has been a clear enforcement priority throughout this administration and the folks that get removed every year… something like 97% 98% of our removals are totally consistent with those enforcement priorities. So the pipeline of removing folks convicted of serious crimes is well-established, and that what’s the agency’s efforts are focused on.”
The next question had to do with border security and the perception from Republicans that the Obama administration was not tough on the border.
“There’s this sort of mythology around the border.” Muñoz said. “It’s the ultimate symbol of the immigration debate. And it is largely a kind of a fact-free zone, the conversation about what happens at the borders. So just numerically speaking, the number of people trying to cross into the United States is kind of near its lowest levels in the last 40 years. The undocumented population in the United States has started to shrink for the first time in decades, I think since we’ve been paying attention. You wouldn’t know that by the tenor of the overall debate. And actually one of my big worries when we get back to a place when we’re having a legislative debate in Congress is that we may be trying to solve a policy problem from 20 years ago, which was the high levels of migration from Mexico to the United States.”
“That’s not the problem that we face at the border right now,” Muñoz continued. “Now we do have challenges at the border, but that’s not what our challenge is. And so it would be really useful for the policy debate to catch up with the reality of what we’re facing. So the mythology about people essentially evading the Border Patrol, that happens but to a much, much lesser extent than it used to. The challenges that the Border Patrol faces now are people from countries other than Mexico who show up and turn themselves in. And they’re actually managing a population which is showing up and raising their hands and saying, ‘Here I am.’ The debate isn’t really focused on what the particular challenges of the border are now. It’s focused on something from ages ago that there’s such a mythology built up around that it’s hard to have a conversation based on facts.”
After this part of the conversation, Muñoz was asked about whether the current migrants from Central America coming to the United States are “illegal border crossers” or refugees, and what has this meant to U.S. policy.
“There has been a shift in policy. We’re trying to confront this in multiple ways,” Muñoz said. “The first is to deal with the situation that presents itself at the border and we’ve been managing essentially what I think is two sides of the same coin: one is our responsibility to have a secure border and the other is our responsibility to address humanitarian concerns. So the way that works, the way our law is structured, by the time folks get here, the avenue for them to seek protection is through the political asylum process, which is backlogged, which we’ve been working to increase the resources towards without much cooperation from the Congress. The policy change that has already taken place, because I completely agree, you can’t just enforce your way out of this problem or expect that we will successfully deal with the refugee dynamics here just through our political asylum process, is to actually focus on what’s happening in the Northern Triangle countries themselves.”
“So we fought for 18 months and finally secured an investment from Congress of $750 million that’s being invested,” Muñoz continued, “and there are some initial signs, particularly in Honduras, that that’s having some positive impact on reducing crime and violence. So one piece is investing in the region and making sure that you’re actually dealing with the root causes here, but that’s not a short-term solution. The second piece is allowing people who are in fact fleeing out of fear, the ability to seek protection before they take this incredibly long and dangerous journey. Too much of this conversation has been focused on what happens for those people who survive the trip and actually get to our border, and we’ve been working very hard to try to focus the conversation on developing protections for people, so they don’t have to take that dangerous trip in the first place. So a couple of years ago, we established a modest program for children to provide a legal avenue as an alternative for putting your kid in the hands of smugglers to take them all the way through Mexico, and we have begun to do the same now for adults, so that people can make their case that they’re refugees before they do this incredibly dangerous thing. There’s much more work to be done there to make that a real and as robust a process as it needs to be, but I think ultimately that’s the policy shift that’s begun under this administration and the conversation which needs to continue.”
Muñoz also addressed a follow-up question about enforcement priorities and whether some groups, like DREAMers and parents of U.S. citizens, should not be added to any enforcement priority lists moving forward:
“I guess theoretically, like if you assume either that Congress ups the resources so that there’s enough to remove everybody that’s removable or that population is small enough that it doesn’t take just a crazy infusion of resources… but look, here’s the thing: Congress decides who’s removable, and the Executive branch’s job is to remove the people who are removable. So given that the job that this Executive branch faces at this particular moment, is that there are 11 million people in this situation, and it’s clear that there aren’t going to be the resources to remove all of them, the Executive branch is properly making choices as to how to expend those resources in the most impactful way. But under the sort of theoretical basis of your question, the issue is really that Congress determines who’s removable, and it’s appropriate to set priorities if the job is bigger than Congress can provide for. But if the bigger question is… are there people here who should be here should they be allowed to be here legally because we all recognize they’re here and they’re making a contribution, nobody really wants them to leave, you need Congress to fix that. The Executive does not have the capacity to do that in a permanent way.”
Kerwin followed up by asking Muñoz about a possible increase of money towards more deportations.
“We already spend a huge amount of money on it as it is,” Muñoz said, “and there’s definitely room to question whether that’s the best use of our resources because we’ve allowed this problem to build as a result of our failure to enact legislation to fix what it broken about the system.”
Later in the podcast, Muñoz was asked if there is anything the Obama administration can do in its final days in trying to protect DACA beneficiaries and refugees, particularly a call by some to have President Obama issue a pardon.
“I know people are hoping for use of pardon authority as a way —and people are obviously deeply concerned I think, as we all are, for what could happen next— but because DACA is a use of executive authority, obviously the next Executive can make whatever decisions they’re going to make about it, and that has been clear and again the President has said since the very beginning that this why he preferred legislation because anything that he had the capacity to do for people was by definition temporary.” Muñoz said. “I know people are hoping that pardon authority is a way to protect people. It’s ultimately not, for a couple of reasons: one is that pardon authority is generally designed for criminal violations not civil, but also it doesn’t confer legal status; only Congress can do that. So ultimately it wouldn’t protect a single soul from deportation. So it’s not an answer here for this population. I know people are hoping for an answer but by its very nature, the use of executive authority in this way is subject to the will of the Executive.”
In reflecting about her eight years working in the Obama administration, Muñoz had this to say about the immigration debate:
“I worry that on both sides of the immigration debate, emotion gets in the way of sound thinking with respect to what are the problems that we can fix. And on both sides of the debate, I think that the degree of the emotion can interfere with just making good policy judgments and good strategic judgments so that we can get to solutions here.”
Finally, Muñoz also talked about whether the strategy by immigrant rights groups to focus more on protection of undocumented individuals than on trying to get a legislative solution was a good strategy in hindsight.
“Rightfully so, the immigrant rights community is focused very much on the question of protection for the folks who are here without immigration status. Understandably, that’s work I did for many, many years,” Muñoz explained. “The protection issue understandably got so huge, that it ended up being bigger than the legislative debate. And so folks I think pivoted to this notion that the President just should do whatever he can do right now because we need to protect people right now, and that probably happens several years before we had the opportunity… we still had a window for congressional consideration of immigration reform. And much of the advocacy community wasn’t focused on it because they just really wanted the President to take executive action.
And the President insisted that we should leave no stone unturned in getting Congress to do its job because his authority was limited, and unfortunately, we’re now in a situation where folks took the heat off of Congress. Congress didn’t do its job. No one can answer the question of whether or not if we kept the heat on, the House would have gotten there. We’ll never know. But as a result, it’s possible we missed an opportunity to fix what’s broken.”
You can listen to the entire conversation here: