Now, Rep. Steve King (R-Iowa) is accusing the U.S. Department of Homeland Security and Secretary Janet Napolitano of engaging in preferential treatment by releasing Onyango Obama. On Fox News, King said that “We have to bring drunken ‘Uncle Omar’ in front of the House Judiciary Committee, drill down into this, and tell America what’s going on.”

The accusations of double standards come at a time when the administration has declared its intent to use its power of prosecutorial discretion to grant indefinite stays of deportation on many undocumented immigrants. King, House Judiciary Chair Lamar Smith (Texas) and other immigration-enforcement hawks in Congress are jumping on Onyango Obama as a way to paint deportation reform as an erosion of the rule of law.

They have also pointed to Zeituni Onyango, Obama’s aunt, who was living in the United States without authorization but was granted asylum in 2010. King says Zeituni’s asylum was a product of the “bleeding heart” of Napolitano, in spite of the fact that the order to grant Zeituni Onyango political asylum was issued by an immigration judge, not Napolitano herself.

Here’s video of King on Fox News accusing the Obama administration of double standards, via The Hill:

The news of Onyango Obama’s arrest comes two weeks after an announcement by the secretary of the U.S. Dept. of Homeland Security Janet Napolitano that many immigrants without criminal records who are up for deportation will be allowed to indefinitely stay in the United States and apply for work permits. Which immigrants will be allowed to stay will be determined according to a list of criteria outlined in a prior memo by ICE director John Morton which advised prosecutors to exercise discretion when deciding whether to place someone in deportation proceedings.

Conservatives and Republican leaders have used the news of Onyango Obama’s arrest to denounce the new deportation policy, which many of its opponents have taken to calling “administrative amnesty” (although the policy does not offer legal status or a path to citizenship to undocumented immigrants, which would require an act of Congress).

Conservative media website Newsmax ran a story Monday about Onyango quoting three different Republican U.S. representatives, each of whom drew associations between Onyango Obama’s arrest and the administration’s deportation reform. One of the representatives quoted is Rep. Steve King (R-Iowa), a tea party movement leader and prominent opponent of any legalization of undocumented immigrants:

…King, who sits on the House immigration subcommittee, said the Onyango Obama case “raises a troubling list of questions about the potential for preferential treatment.

“It is yet another reason Congress should hold hearings to expose President Obama’s executive amnesty program,” he said. “With an existing deportation order, it is not surprising to learn that ‘Uncle Omar’ Obama told police officers that his first call would be to his nephew in the White House. Now that the executive branch has gotten into the business of undermining the rule of law, there is little question that anyone who is connected to the president, politically or otherwise, will have an advantage.”

The article also quotes Rep. Joe Walsh (R-Ill.), who called the arrest “the height of irony” and a potential “massive conflict of interest,” and Rep. Louis Gohmert (R-Texas), who said, “This is one more example of where the president is in a position where he can give favorable treatment to his cronies, and in this case a relative … It’s one more step making us look like a Third World corrupt government where it’s all about who you know.”

National Review blogger Mark Krikorian, who is also the director of the Center for Immigration Studies, one of a family of restrictionist organizations founded by John Tanton, said of Onyango Obama’s arrest, “Now [President Obama] has two illegal-alien relatives,” referring to Zeituni Obama, Onyango Obama’s sister and Barack Obama’s aunt who applied for asylum in November 2008, the month her nephew was elected president.

Prominent conservative blogger Michelle Malkin echoed Krikorian, writing, “Entry into this country is no longer treated as a privilege, but an irrevocable right for every last griping Zeituni and reckless Omar.” (Omar is what Barack Obama called his uncle in his memoir.)

Cecilia Muñoz, White House director of intergovernmental affairs, wrote at the time of Napolitano’s announcement that the administration “will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place.”

But as The Florida Independent reported last week, how the deportation reform will play out in practice is very uncertain at this time. Someone convicted of a DUI, which Onyango Obama is accused of, may or may not be a “low priority” case according to ICE’s definition.

The full story is worth a read for some of the intricacies of parental rights laws and the arguments on both sides. But it’s also worth considering the broader impact of immigrant detention and deportation on families, particularly in cases where U.S.-born children are allowed to stay in the country but their parents are not. (Romero is slated for deportation, but her son, an American citizen, is for now still in the custody of his adoptive parents.)

It’s difficult to say exactly how many parents of American children have been deported. A 2009 Department of Homeland Security study estimated that at least 108,434 parents of U.S.-born children were deported between 1998 and 2007. The actual number could be higher, due to incomplete ICE records on parental status.

Deportation of a parent is a risk for a large number of children. A Pew Hispanic Center report released in August found that of the 5.5. million children of illegal immigrants residing in the country in 2009, about four million were American-born. Eight percent of the 4.3 million babies born in the country in 2008 — 340,000 in total — were born to one undocumented parent.

What happens to the U.S.-born children of deported undocumented immigrants varies. Some children of undocumented parents have another parent who is a citizen or legal resident. (Having a spouse or child who is an American citizen does not necessarily prevent deportation orders. The Guzman family, which I wrote about in October, is an example of an American-born woman and her son facing her husband’s deportation.)

In other cases, children of deported parents live with family members or are placed in foster care. Some move with their parents to their parents’ country of origin, where they may not speak the language or be allowed to work legally when they grow older.

None of the options is fair to children who are American citizens, Rep. Jose Serrano (D-N.Y.) said in 2009. “If, in fact, some [children] were left behind here, then you have the sad tragedy of breaking up families,” he said. “If they were taken back, I would argue the direct result of our actions is the deportation of our citizens. How do you deport a U.S. citizen?”

A parent’s immigration detention or removal poses risks to a child’s safety, economic security and long-term well-being, according to a study of 190 children whose parents were arrested, detained or deported. The Urban Institute found a majority of children experienced behavioral changes, such as different eating or sleeping habits, aggression and crying, after a parent was arrested. Three out of five families in the study reported difficulty “sometimes” or “frequently” after the arrest of a parent. One in four of the families studied moved in with others to save housing costs.

How could the system better protect these children? The Urban Institute says that immigration laws should take parental status into account and argue hardship to American-born children before immigration judges. It also says parents in immigration detention be considered for supervised release — with ankle bracelets, for instance — so they would not be separated from their families.

Why? Citizenship law allows children born outside the United States to at least one U.S. citizen parent to become citizens, if the parent has lived in the country for at least a certain period of time before the child is born. But the length of time necessary is different for mothers and fathers. Before 1986, American fathers needed to have spent at least 10 years in the country — five of them after the age of 14 — to pass on citizenship to their children. American mothers needed only a year living in the United States before the child’s birth to pass on citizenship.

In the Supreme Court case, Ruben Flores-Villar’s father was only 16 when Flores-Villar was born in 1974 — meaning he did not meet the five-year requirement to pass on citizenship to his son. But if the laws for men were the same as those for women, Flores-Villar would be a citizen. Since he was raised by his father, he argues, the law discriminated against men, and he should be allowed to stay in the United States.

The law was changed in 1986, but still has different residency requirements for men and women. While mothers still only need one year of residence in the United States before the birth of a child, fathers now need at least five years, two of which must be after the age of 14.

The Court won’t issue a decision until summer — and perhaps will issue no ruling — but gave some indications as to how it was looking at the case, the Associated Press reports:

Chief Justice John Roberts and Justice Antonin Scalia seemed to sum up the court’s dilemma when they agreed that even if the law is unfair, the only thing that could help Flores-Villar is if the court would, in effect, make him a citizen. “Never done,” Scalia said.

The federal public defender representing Flores-Villar, Steven Hubacheck, said the law perpetuates outdated “gender stereotypes” about caring for children in a time when many more single fathers raise children.

Scalia questioned whether these notions were outdated. He asked if it wasn’t generally true that with “an illegitimate child, it is much more likely that the woman will end up caring for it than that the father would?”

Justice Ruth Bader Ginsburg interjected that the court should be considering parents like Flores-Villar’s father “who don’t fit this mold.”

The immigration system does not provide very many options for resolving this type of case. It’s not clear how often the issue comes up, but the AP reports that some groups say more than 40,000 children per year are born to and raised by an American parent outside the United States — some of whom, undoubtedly, are men.

If children are not automatically granted citizenship, the only option would be for the U.S. citizen parent to petition for a family-based visa for them. If this is done when the child is under the age of 21, the process takes less time because there are no limits set on the number of Immediate Relative Immigrant Visas that the State Department can grant. If parents wait until the child is older than 21, though, wait times could be very long because of the quota system, particularly from countries such as Mexico with a large number of applicants.

It also means the DOJ’s Executive Office for Immigration Review is finally following through on its promise to fill vacancies in the courts, where one in six positions stood vacant as of March. The agency promised to fill the 48 vacancies on immigration courts by the end of the year. They’re not there yet, but Chief Immigration Judge Brian M. O’Leary said the recent addition put the courts on their way to being fully staffed.

“These new immigration judges bring the judge corps of our 59 immigration courts to 262, and we expect to further enhance the corps by additional immigration judges before the end of the calendar year,” he said in a press release.

Vacancies mean longer wait times for hearings and more time in detention centers — plus shorter hearings in a system that already is considered assembly-line justice. Immigration judges had about 70 minutes per case, the shortest time on record from 1998 to the present, according to a March study from Syracuse University’s Transactional Records Access Clearinghouse. In some cases, this means considering multiple cases at the same time, including mass hearings of up to 80 people.

Immigrant rights advocates argue the backlogs make real justice next to impossible, adding to a number of other complaints about the way immigrants are treated in the civil deportation process.

Some rights groups might have one problem with the new judges hired by the DOJ. A look at their biographies shows that a majority have experience in immigration law specifically, but at least 15 of the 23 worked for the Immigration and Customs Enforcement at the Department of Homeland Security, its predecessor Immigration and Naturalization Services or the Executive Office for Immigration Review at the Justice Department.

Immigration attorneys argue that taking judges from DHS adds to the tension of the process. “They’re your archenemies for fifteen years and now they’re the judge,” Glenn Fogle, an Atlanta immigration attorney, told The Nation.

Some immigration courts were far more likely to turn away cases for deportation brought by ICE in fiscal year 2010. In New York City, 70 percent of cases were rejected, while Los Angeles and Portland, Ore., each dismissed 63 percent.

TRAC’s report doesn’t establish a reason for the increase in rejected cases, although it notes that the immigration courts have seen no policy changes and have a very similar makeup to last year. The research organization is involved in a spat with ICE over whether the agency should release more detailed data on how it is enforcing immigration laws after the agency demanded $450,000 to deliver data to TRAC.

Still, the TRAC report comes to some conclusions:

The poor targeting of government removal efforts documented by the Immigration Court data shows that scarce resources such as the investigative time of ICE agents are being wasted and that the ability of the government to deport those who should be removed from the country therefore has been reduced. Poor targeting that weakens the government is inefficient.

Beyond costs to the government, the analysis points to high costs for the people ICE targets for removal who are later allowed to stay in the country. Although cases that end in removal orders took, on average, 140 days during the 2010 fiscal year, backlogs in the courts make dismissals far slower. It took an average of 424 says for a court to rule that ICE had no grounds for deportation and 696 days for a court to determine that a non-citizen should be granted asylum or other relief from deportation, according to TRAC.

“Americans are practical on immigration issues,” David Mermin, a partner at Lake Research Partners, said in a press release. “Americans support comprehensive immigration reform as a practical solution, even among a cranky electorate this year. Republican leaders thinking they have a  mandate to pursue enforcement-only approaches are really mistaken.”

In the poll, interestingly, most members of both parties said they supported comprehensive immigration reform — even before they were given a description of what it would entail. After a description, support rose even higher: 72 percent of Republicans said they strongly supported it, versus 68 percent of Democrats.

Most people in both parties said border security should be tackled at the same time as other immigration issues and that deporting all of the illegal immigrants in the country would be unrealistic.

Of course, those views are different from the ones held by most of the Republicans voted into office last Tuesday. The next session’s House GOP leaders on immigration issues, Reps. Lamar Smith (R-Texas) and Steve King (R-Iowa), have advocated enforcement-first approaches to immigration, and many other Republicans in the House and Senate claim nothing can be done on immigration until the border becomes more secure.

Federation for American Immigration Reform, or FAIR, a group that advocates stricter immigration enforcement, claimed in its post-election analysis that the election results proved widespread support for enforcement-first immigration efforts and “opposition to the Obama Administration’s version of ‘comprehensive’ immigration reform.” In the exit poll results the group released last week, most voters agreed when asked if “President Obama has not been aggressive enough in enforcing immigration laws.”

America’s Voice claims its results indicate that most people support comprehensive immigration reform — even under the Democratic definition — but voted based on economic issues instead. Very few people polled from either party — 3 percent of both Democrats and Republicans, and just 1 percent of independents — said immigration was the most important issue they considered when choosing a candidate.

“The American people are out in front of the politicians on this issue,” Frank Sharry, executive director of America’s Voice, said in a press release. “There’s a vocal and visible anti-immigrant minority that makes some politicians believe they speak for the majority. As this polling makes clear, they don’t.”

The problem with the program, according to critics, is that it sometimes nets non-criminal illegal immigrants, including victims of domestic abuse. Police sometimes arrest (and fingerprint) both parties in instances of domestic violence, then later charge the person determined to be the likely perpetrator and release the other(s) without filing charges. In the three counties that wanted to be removed from Secure Communities, police said the program could deter undocumented immigrants from reporting crime and lessen overall public safety.

But when law enforcement officials in San Francisco mentioned this concern to Venturella, he was reportedly confused and said he hadn’t heard of such a concern, according to a lawyer who was briefed on the Tuesday meeting.

“David Venturella was confused by the domestic violence problem,” Angela Chan, a staff attorney with Asian Law Caucus who has been critical of Secure Communities, told TWI. “ICE didn’t have much of a response. I don’t know if they were being disingenuous and they hadn’t heard of it, but it’s a pretty common criticism of the program.”

ICE did not respond to multiple requests for comment.

In general, Chan said she was told community policing concerns were not addressed by ICE officials during the meeting in San Francisco on Tuesday. But such concerns have been a central tenet of why counties asked to be removed from the program in the first place — and have gotten a reasonable amount of media attention.

The Washington Post reported on Nov. 1 about a Hyattsville, Md., woman who called the police after a fight with her partner. The woman, who is in the country illegally, claims the call put her on the radar of a local police officer who later charged her with illegally selling phone cards, an allegation she denies. The charge was thrown out, but her fingerprints had already been shared with immigration authorities under Secure Communities, and she now faces deportation.

ICE officials told the Post the agency has the right to pursue deportation if it discovers someone is in the country illegally:

“ICE cannot and will not turn a blind eye to those who violate federal immigration law,” said Immigration and Customs Enforcement spokesman Brian Hale. “While ICE’s enforcement efforts prioritize convicted criminal aliens, ICE maintains the discretion to take action on any alien it encounters.”

In other situations, critics of the Secure Communities program say that police make two arrests and then determine who is the victim of abuse once at the station — but after fingerprints have begun to make their way into the hands of immigration authorities.

The immigration system has some protection for victims of domestic violence: As I mentioned yesterday, foreign-born spouses of Americans can petition for citizenship on their own — bypassing abusive spouses — if they can prove abuse. For undocumented immigrants, U visas are available to victims of certain crimes, including domestic violence. These visas grant victims the right to remain in the United States and work legally, but are granted based on the discretion of law enforcement agencies, which sometimes differ on what crimes merit the visas.

Republican positions on immigration — and particularly the positions of hardliners like King — will be a major change from how current Speaker Nancy Pelosi (D-Calif.) and other leading Democrats handled the issue. House Republicans have said they will focus on border security and immigration enforcement over potential reform to the legal immigration system.

King tends to be on the extreme end of anti-illegal immigration rhetoric: He favors changes to birthright citizenship to keep U.S.-born children of illegal immigrants from receiving citizenship and argues more states should pass immigration crackdowns like Arizona’s SB 1070. King has pushed for more border enforcement and an electrified  fence along the border to keep illegal immigrants out. “We do that with livestock all the time,” he said.

As head of the immigration subcommittee, King wants to call various leading Obama administration officials to hearings to ask them about immigration enforcement and, presumably, imply the administration does not want to deport people.

Of course, King won’t have ultimate power over the House Republicans’ priorities on immigration. Boehner will set a good deal of the agenda, and is likely to follow some of the plans hinted at in the Pledge to America, a vague but enforcement-heavy document released in September.

Non-citizens who attempt to vote can — and often do — face deportation, which opponents of the Arizona law argued is enough to deter fraud. “The penalties against non-citizens registering to vote are very serious and have served Arizonans — and all Americans — well for decades,” Linda Brown of the Arizona Advocacy Network, a plaintiff in the case, said in a press release. The court seemed to take this view by ruling the federal law does not allow states to require would-be voters to prove citizenship. But in other states, politicians are still proposing legislation that would crack down on voting by non-citizens.

Kris Kobach, who is running for Kansas secretary of state and helped draft Arizona’s SB 1070 immigration law, has said he wants to require proof of citizenship at polling stations, claiming “the illegal registration of alien voters has become pervasive.” Kobach won support for this idea from likely governor Sam Brownback, who is currently serving as a Republican senator.

Colorado Republican state Rep. Ted Harvey told TWI he plans to introduce a bill requiring documentation for voter registration in the form of a birth certificate or passport.

In Arizona, challengers to the 2004 law said in a press release that the law had prevented citizens who did not have documentation of their citizenship from voting. “We are elated that the Ninth Circuit has properly applied federal election law and struck down the documentary proof of citizenship requirement,” said Jon Greenbaum of Lawyers’ Committee for Civil Rights Under Law, who argued the case for appellants. “This will enable the many poor people in Arizona who lack driver’s licenses and birth certificates to register to vote.”