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Prof. Bruce Einhorn's Op-Ed on Obama's Executive Order on Immigration | The Jewish Journal

November 25, 2014  | 3 min read

Welcoming the stranger

Bruce J. Einhorn, Editorial, The Jewish Journal

On almost every emerging issue of public policy, our community asks the same question, either in audible or hushed voices: “Is it good for the Jews?” In the matter of President Barack Obama’s recent decision to defer and sideline prosecutions that might have resulted in the deportation of some 5 million undocumented persons in the United States, the answer to the question should be said and repeated in a loud, clear voice: “Yes!” Sometimes, what is good for the nation as a whole is good for the Jews, and vice versa.

In a televised address to the nation on Nov. 20, the president responded to longtime congressional inaction over proposals for comprehensive immigration reform by executive action. Specifically, he exercised his authority as chief of the executive branch of the federal government to defer the initiation of removal/deportation proceedings (and administratively close already-filed cases) against foreign-born individuals who have lived in the United States for five or more years, have no criminal records and have U.S. citizen or lawful permanent resident children.  Persons eligible for the president’s initiative will be required to register with the Department of Homeland Security, undergo background checks, work only when they secure employment authorization (for which they will now have the right to apply) and pay taxes on their income.  Those persons will not be eligible for welfare benefits or Obamacare. 

The president’s executive action is limited in time and scope: It will only last for three years, and will not constitute a permanent immunity from deportation proceedings or a pathway to permanent residency or naturalization.  Moreover, it confers no immunity from deportation for millions of longtime undocumented residents of the United States who have no U.S. citizen or lawful permanent resident children, or the hundreds of thousands of child and teenage migrants who have entered the United States without inspection over the past year. It is, rather, a temporary measure designed to maintain family unity for millions of hardworking, law-abiding adults who help support and sustain their children, many of who depend on them for financial support and all of whom depend on them for the emotional support that we all have needed from our mothers and fathers.   

As Obama said in his speech, “Tracking down, rounding up and deporting millions of people isn’t realistic.” The president has used his constitutional power as chief enforcer of the immigration laws to allocate the resources of his government’s immigration officers and attorneys to prioritize the commencement and continuation of deportation cases against criminals, the recently arrived, and those with few or no family ties in the U.S. If every possible deportation case that could be brought to the federal government were, the already overloaded, undermanned, and underfinanced immigration court and enforcement systems would collapse of their own weight. Every prosecutor in every jurisdiction makes decisions every day on which cases should be filed and which should be deferred. The president has done no more than that.

The president’s initiative now places the ball firmly in Congress’ court to pass or not pass comprehensive or even piecemeal immigration reform.  Since the administration of George W. Bush — who, to his credit, pressed for comprehensive immigration reform of the same kind now favored by Obama — the Republican right has stymied all efforts to bring a bill to the floor of the House of Representatives for a vote. Several times, the Senate has passed an immigration reform bill.  Several times, House Speaker John Boehner has indicated his desire to pass an immigration reform bill. Nevertheless, several times, the speaker has led from behind and refused to bring a reform bill to the House floor because of the intransigence of a minority of his GOP caucus. The speaker and other Republican leaders in Congress have decried Obama’s initiative as unconstitutional (which it is not), as amnesty (which it is not) and as a refusal to work with Congress on more comprehensive legislation (which is belied by the evidence of the recent past). Obama’s response to all of this hyperbole has been succinct and on point: “Pass a bill.”  

Returning to the question of whether the president’s initiative is good for the Jews, we should all dust off our Torah and reread Exodus 23:9. “You shall not oppress a stranger, for you know the feelings of the stranger, having been strangers in the land of Egypt.” The Obama initiative is a limited, practical act of rachmones — empathy — designed to lift some of the terrible burdens from those people who live in the shadows of our society, while they help raise our children, tend to our homes and gardens, and pick our fruit. As they help sustain us, we should find the compassion to help sustain them. That is the Jewish — and the American — way.

Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 through 2007.  He is currently a professor of immigration, asylum and refugee law at Pepperdine University School of Law in Malibu, and executive director of The Asylum project, a nonprofit aid group for the victims of foreign persecution and torture.