Border crisis: With immigration reform ‘dead,’ will Obama act alone?

With tens of thousands of undocumented children surging over America's southern border, the Obama administration is mulling over whether to take executive action to ease the crisis.

As a seemingly unending phalanx of women and children continues to try to cross into the US from Central America, President Obama has only a few politically unappetizing options left on the table for how to ease a humanitarian crisis that critics say is at least partly his own making.

Fifty thousand people – mostly women with small children and unaccompanied alien children (UACs) – have crossed the Rio Grande River in south Texas this year, and another 40,000 are expected by October. The vast majority are from noncontiguous countries such as Honduras and Guatemala, which means US officials can’t just turn them back at the border. Instead, these women and children are piling up in US detention centers and being released on their own recognizance, with a promise to return to immigration court in months or years.

Most immediately, the crisis has stalled momentum on Capitol Hill toward immigration reform. House Republicans are taking the surge of undocumented women and children as proof that the US border is too porous to even start talking about a path to legal status or citizenship for illegal immigrants already in the US.

But the situation also gives Mr. Obama a new reason to use his executive powers to bypass a hostile House of Representatives, possibly by expanding his 2012 order that allows thousands of illegal immigrants who came to the US before the age of 16 to avoid deportation and work legally. A new executive order, for example, could expand eligibility to other classes of immigrants, including parents of these so-called Dreamers. 

Democrats began pushing that option this week, arguing that Republicans have declared immigration reform “dead” by not offering up a bill, thus forcing Obama’s hand to act unilaterally. The Democratic-controlled Senate approved a bipartisan immigration reform bill a year ago Friday, but the House has not taken it up.

“It’s fair to say the White House and the president have been pretty disappointed,” White House press secretary Josh Earnest said Thursday on MSNBC. “We’re not going to just sit around and wait interminably for Congress.”

Meanwhile, the border situation remains fluid and politically explosive. At stake are not only the future prospects of thousands of illegal immigrants, but also perhaps the 2014 elections, in which scenes from an unsettled border may inflame an already-passionate Republican base and possibly tip control of the Senate away from Democrats.

“The timing here couldn’t be worse for the broader immigration debate – both in terms of the administration’s ability to tell the story about how the border is more secure and it’s time to move on to broader reforms … and the fact that there’s a narrative emerging that previous administrative actions are contributing to unauthorized migrant children arriving here,” says Marc Rosenblum of the nonpartisan Migration Policy Institute in Washington.

In addition, some conservatives have characterized the situation as a setup. The administration, they say, purposely set the migration surge into motion to create a border crisis that Obama and Democrats could cite to expand DACA and take other unilateral executive actions. (Along those lines, the conservative Drudge Report had this headline: “Nancy Pelosi to greet new arrivals at border.” The House minority leader's office on Friday confirmed that she will be touring the South Texas Detention Facility, as reported, but that she will not be meeting with the children.")

Such suspicions have transformed the border crisis into a Republican rallying cry, including alarms over disease, gangs, and economic harm to American workers.

Moreover, according to Eli Kantor, an immigration attorney in Beverly Hills, Calif., Obama appears to be winking at Hispanic immigrants. For example, while Obama warned Central Americans this week that their children will be sent back if they cross the border, he also earlier appropriated $2 million for legal groups to help make asylum claims for children who have managed to arrive there.

“The president is talking out of both sides of his mouth,” says Mr. Kantor.

Any citizen of a noncontiguous nation who manages to sneak into the United States can request asylum once apprehended. The United Nations has estimated that two-thirds of the arriving unaccompanied minors may have a case, and US immigration judges, on average, give asylum to about half of seekers, on the basis of their individual stories.

The crisis has begun to take a political toll on prospects for Obama’s immigration reform strategy. The president met with Department of Homeland Security Secretary Jeh Johnson this week to mull over his options, even as word leaked out that the administration may stay its hand on possible expansion of executive orders on immigration, so as not to rile Republicans too much before the midterm elections.

Obama “really is in a very tight place,” Doris Meissner, director of immigration policy at the Migration Policy Institute, told the Washington Times. “It’s virtually an impossible situation. It is not a situation that in any way respects policy and reasonable discourse. It’s entirely politics.”