Executive Amnesty Review Promises More Twists and Turns (of the Law)

By Van Esser, Thursday, March 20, 2014, 2:32 PM EDT

In order to placate illegal-alien advocates who falsely claim the Administration has deported record numbers of illegal aliens, President Obama announced that DHS would review options for making immigration enforcement “more humane.” Translation: they’ll find more ways to ignore the law and make illegal aliens comfortable while the comprehensive amnesty alliance pursues House Republican hold-outs.

About two-thirds of removals last year were illegal aliens apprehended crossing the border, not in the interior U.S. ICE reported that “98 percent of the agency’s total removals were convicted criminals, recent border crossers, illegal re-entrants or those previously removed by ICE.” And a full 82 percent of interior removals in 2013 were convicted criminals.

So the media-facilitated campaign to end “record deportations” of “hard-working” illegal aliens is a scam designed to give the Administration political cover for backing off its already meager interior enforcement efforts. And now this “review” will produce options for exempting more illegal aliens from federal immigration law.

What options will the review produce? Few specifics are available but they will likely either use prosecutorial discretion to ignore interior enforcement requirements or twist existing authority to legalize certain illegal aliens. The history of “administrative relief” provided illegal aliens to date may be the best guide for understanding how DHS will further mangle it enforcement responsibilities.

Sen. Jeff Sessions, R-Ala., produced an outstanding analysis entitled Timeline: How The Obama Administration Bypassed Congress To Dismantle Immigration Enforcement, which outlines how DHS backed away from its border security and interior enforcement responsibilities under the law. Let’s focus on just the interior curtailments:

March 2, 2011: Morton Memo #1 - ICE Director John Morton creates new Administration enforcement “priorities”— convicted criminals, terrorists, gang members, recent illegal entrants, and fugitives (i.e., those who disappeared before their court date). The memo encourages ICE Agents to exercise prosecutorial discretion for illegal aliens who do not meet these priorities and directs ICE field office directors to not “expend detention resources” on them.

June 17, 2011: Morton Memo #2 – Directs ICE agents not to enforce the law against certain segments of the illegal alien population, including those who could qualify for the DREAM Act.

June 17, 2011: Morton Memo #3 – Instructs ICE to refrain from arresting illegal aliens engaging in “protected activity” related to civil rights or other matters such as union organizing or public demonstrations.

Nov. 7, 2011: USCIS memo instructs attorneys to stop issuing “notices to appear” in court for non-priority cases. Shortly thereafter, the Justice Department announced a review of all cases on the docket for possible administrative closure. Almost 20,000 qualified.

Jan. 6, 2012: USCIS rule proposal allows the relatives of citizens to apply for waivers to remain in the U.S. rather than first having to return home. That rule was finalized in Jan. 2013.

June 15, 2012: USCIS announces the Deferred Action for Childhood Arrivals (DACA) program, which uses prosecutorial discretion on an entire class of illegal aliens. It took effect 90 days later. So far, over 520,000 have received a two-year stay of deportation and a work permit. Only a small percentage were ever denied.

December 21, 2012: Morton Memo #4 – Prohibits ICE agents from detaining illegal aliens simply for illegal presence. A non-immigration crime must have been committed.

August 23, 2013: ICE policy prohibits Agents from detaining and/or deporting illegal alien parents, legal guardians, and “primary caretakers” of minor children.

November 15, 2013: USCIS memo offers parole in place (temporary-leading-to-permanent legal status) for illegal aliens who are the spouses, parents and children of American military members.

Memo by memo, and occasionally by rule, DHS management took away ICE Agents’ discretion to intercept illegal aliens in the interior. In other words, blocked their ability to do their job as required by law. It’s no wonder that ICE Agents (and those in the Border Patrol, for that matter) subjected their management to no-confidence votes on several occasions.

How can interior enforcement be further dismantled? The illegal-alien advocates’ top priority is to extend “relief” provided under the Deferred Action for Childhood Arrivals program to, at a minimum, the parents of those with DACA status. Many want DACA status for all illegal aliens without major criminal backgrounds. However, the Administration has tentatively denied this option because they fear enlarging the program will force them to have to defend it in court.

An LA Times article said the Administration’s review would effectively stop most deportations for those with no criminal convictions. One way to do that is to limit detentions under the Secure Communities program to illegal aliens who have been convicted of major crimes. This would essentially set up a California TRUST Act scenario. Another way is to remove fugitives and those reentering after removal from the Administration’s “priority” list.

The Administration’s review is being marketed in the media as something new but it actually started months ago. And DHS is getting advice from so-called “stakeholder groups.” No, not NumbersUSA, just pro-amnesty groups like the National Immigration Law Center (NILC).

To assess which options might be on the table, it’s useful to look at the options groups like NILC advocate. In December, 2013 NILC produced an analysis called How the Obama Administration Can Use Executive Authority to Stop Deportations. It says prosecutorial discretion powers would give DHS the ability to refrain from placing a deportable person in deportation proceedings; suspend or terminate a deportation proceeding; and postpone a deportation.

The tools for accomplishing these goals are forms of “administrative relief” such as deferred action. The Deferred Action for Childhood Arrivals program is one example of how deferred action can be used but that, apparently, is not the preferred option. But there are other forms of relief that provide a work permit – a top priority for advocates. According to NILC they include:

Deferred action departure, which is like deferred action in that it’s allegedly assessed on a case-by-case basis, but reserved for people from specific countries with a natural disaster or armed conflict;
Temporary Protected Status, which gives temporary legal status and a work permit to anyone from a country that is experiencing a natural disaster, an armed conflict or an “extraordinary and temporary condition;”
Parole in place, which allows illegal aliens already in the U.S.to remain (case-by case; provides work permit) for a temporary period;
Administrative closure, which temporarily stops removal proceedings (case-by case) by removing cases from the court docket; and
Stay of deportation or removal, which temporarily prevents ICE from deporting illegal aliens based on human or foreign policy concerns.

In October, 2013 NILC produced What DHS Can Do Right Now, which offers three options for slowing deportations. First, DHS must follow existing policies and promises. Ever since the first Morton memo, illegal-alien advocates have complained that ICE Agents are not following executive amnesty policy. They also argue these policies should apply agency-wide because one branch may not follow the policies of another. NILC wants Agents to be held accountable for not following policies. That would have a further chilling effect on enforcement.

Second, NILC says DHS must ensure due process and fairness for illegal aliens. This includes advising illegal aliens of their rights and refraining from conducting arrests in jurisdictions that engage in racial profiling or pretextual arrests like traffic stops.

Third, NILC wants DHS to “stop mischaracterizing and criminalizing non-citizens as ‘criminal aliens.’” This includes not deporting a previously-removed illegal alien because of their “desire to rejoin” their family. It also includes ending the use of the Operation Streamline program, which conducts fast-track prosecutions in group hearings that process illegal aliens from arrest to jail — with sentences as long as six months — in as little as one day.

So expect the media-facilitated campaign to end “record deportations” to continue, perhaps supplemented by educational efforts on the “humane” alternatives that are available to DHS. Whatever options the agency selects, you can rest assured they will manipulate our immigration laws to benefit those who broke them, not the citizens and legal immigrants they were designed to protect.

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