By John Zipperer
Vice President of Media & Editorial, The Commonwealth Club of California

When Pulitzer-Prize winning journalist Jose Antonio Vargas spoke to The Commonwealth Club about his announcement that he is an undocumented immigrant (see video embed at bottom), many people wondered if he was making a big deportation target out of himself. I spoke with Lavi Soloway, a Los Angeles-based immigration attorney with Masliah & Soloway, PC. Soloway also co-founded Immigration Equality, which works to get gay and lesbian immigrants and their partners the same immigration rights as heterosexuals, and he works with stopthedeportations.com, which – well, the name describes its focus pretty well.

An abbreviated version of this interview appears in the October/November 2011 issue of The Commonwealth magazine.

ZIPPERER: Let's talk about [the recent] development, in which the Obama administration announced a partial end to deportations for some people. What does it mean?

SOLOWAY: They announced the formation of an interagency working group to take the entire caseload of pending cases to determine if they met the criteria for prosecutorial discretion. What they're doing now is something unprecedented. On June 17, they issued a memo that instructed immigration and customs enforcement attorneys and deportation officers to exercise discretion and gave them very detailed guidelines on how to do that. They determined it would be better not to leave those case-by-case determinations solely in the hands [of those officers] but also to implement a system-wide effort that will hopefully bring more uniformity to these decisions.

ZIPPERER: Is this a significant development, then, or is it just bureaucratic detail?

SOLOWAY: I think it's a very significant development. First, the sheer magnitude of what they're undertaking is evidence of a very strong commitment to match deeds with words. The president made a very impassioned speech in El Paso, Texas, a few months ago that [his administration would prioritize the removal of criminals and would deemphasize non-criminals in a uniform approach]. Leaving it to individual prosecutors and individual offices is not having uniformity. Creating a new working group to do the best possible job that you can do, and doing it on the heels of that unprecedented memorandum, is also significant.

[We'll see over next few months the fruit of their labor and how good it is.] If they accomplish it, it will take a large portion of the people facing deportation cases – somewhere between a third and a half of all pending cases – and would close [them] out; they close the proceedings, so they no longer continue to seek the deportation. Of course if they commit a crime, the deportation proceedings can be reopened.

The real takeaway is not necessarily that they will give these individuals lawful status and all the identity documents that come with such status; but they are, at minimum, intending to return these individuals to the status quo. They will not have automatic access to any identity documents. But unlike the previous administration, they will permanently allow people to stay here undocumented.

ZIPPERER: Journalist Jose Antonio Vargas recently publicly identified himself as a gay undocumented immigrant. Do you think he will be deported under these new rules?

SOLOWAY: Vargas is an undocumented immigrant. What is the likelihood that he would be prosecuted for deportation? I think since June 17, if Vargas meets the criteria set out in the memo, and I think it's clear that he does, it's very unlikely that he's going to be considered a priority for deportation.

ZIPPERER: Vargas admitted having a drivers license secured by a stolen Social Security number. He has also admitted having to tell a number of lies so that he could get along in his career. Will that be an impediment in any possible defense against government deportation or prosecution?

SOLOWAY: None of us can actually know, when judgment day comes for him, how those things will be weighted, but I think there's a tendency in the larger population to not understand what the life of an undocumented alien is. This is not meant to apologize for any lawbreaking, but we have millions of people driving cars in the U.S. with documents they shouldn't have. That is the reality, and we have created this reality with our broken immigration system. People have to feed themselves, house themselves, clothe themselves.

[Vargas] is a person who educated himself and made a name for himself and became very successful. He is not a loafer or someone who's a criminal.

ZIPPERER: President Obama has stated that he wants to move toward major immigration reform. What are the prospects for this happening?

SOLOWAY: The last time there was an opportunity for illegal aliens to obtain lawful status by being sponsored by a family member or employer was April 30 2001. Since then we have been waiting for Congress to tackle immigration reform.

I see the prosecutorial discretion announcement as in some ways unrelated to the administration's strong desire to see comprehensive immigration reform. What's happened here is that the executive branch has found a way to do its job more efficiently, to use the limited resources of immigration customs and enforcement to remove these individuals who are a threat or a danger to our country. The Obama administration has developed something that's going to achieve that in a way that directs the limited resources in a way better than before. To the extent that it makes a lower priority of cases that involve family unification and other humanitarian issues, I believe that also achieves the goals that have already been set by Congress, but it doesn't give those people any automatic eligibility for benefits or hope for adjustment of status to permanent residence. We must have major legislative reform, or we are always going to be talking about the endgame: Who decides who will be deported?

So [Obama] has been nimble here in exercising the power of the executive branch in looking at the law enforcement portion of this.

But it doesn't conflict with the need for comprehensive immigration reform, which he has called for, and which will have to be taken up either by this Congress or the next. He gave one major speech on this subject in which he outlined what major immigration reform should achieve for this country to make it more humane and more competitive economically. He talked about a variety of policy goals that are embedded in immigration laws.

You have to have willing partners in Congress, but there has not been a broad coalition in support of immigration reform. That is not entirely the fault of the Republicans, but the Republicans have walked away from immigration reform. It is not possible for something of this magnitude to be done without bipartisan effort. On the Democrat side, [Harry] Reid, [Charles] Schumer, and [Robert] Menendez all put a lot of effort into a comprehensive immigration bill that has been introduced twice, but that bill is just going to sit there as long as there is not the support there to move it forward.

ZIPPERER: Do you think that the legalization of gay marriage in New York State and the rise in its support across the spectrum is going to have a noticeable impact on federal immigration challenges for gays and lesbians?

SOLOWAY: Of course, not only because New York State is a bellwether state for civil rights issues, but also because marriage equality was brought into being in New York because Republicans decided to vote for it. It could not have happened without those Republican votes. That is probably the biggest difference between all the marriage equality gains that had been made before June 24 [when New York State legalized same-sex marriage] and the day after.

Part two – why did Republicans vote for it? When you looked at polling, you found that 60 percent of New Yorkers supported it. Now majorities supported it, and the implication for the federal immigration context is that when I go into an immigration court representing a gay woman married to a U.S. citizen, I'm talking to individuals, judges and prosecutors who, outside of that courtroom, also live in the real world. They understand how gay and lesbian couples live their lives and form their families, that they're the same, that it's no longer anything unusual, and that it's finally being understood that gay and lesbian couples form their families and marry just like anyone else and that these couples don't want to be torn apart.

I think what happened in the last year beginning with the [California] Prop 8 decisions in August 2010 was that public opinion shifted. There was some buyer's remorse in California over Prop 8, there was the decision in Massachusetts striking down DOMA, and polling data started for the first time repeatedly showing support for marriage equality. These are all things that reflect the change and inch it forward. The Obama administration has not only refused to defend DOMA in federal court, but is actively arguing that DOMA is unconstitutional, filing briefs in support of plaintiffs. This is unprecedented.