Sunday, April 1, 2012

Partisanship and The Subversion of The Rule of Law In The DHS

Anyone who has watched Telemundo and other Spanish speaking media outlets are familiar with the narrative that the Obama Administration has been unduly harsh on undocumented immigration. Indeed, in in his first year in office, we did witness a sharp rise in the number of deportations from GW Bush Administration's virtual elimination of enforcement. But, before we continue we should briefly explore the point that the prior administration's policies should not be set as the measuring stick of what constitutes a reasonable enforcement of the law. Rather, if we hold questions of immigration law enforcement to the same standards that we approach any other category of law, from traffic to environmental, i.e.all laws on the book must be enforced, the Obama Administration's commitment to the rule of law becomes questionable. And when we explore a series of internal Homeland Security memos, it becomes clear that President Obama is pursue a defacto amnesty through administrative decree.

But, in questions of politics, perception is reality, so faced with growing alienation from Hispanic voters and the political impossibility of pushing immigration reform through congress, the Obama Administration has turned to administrative decrees, what some refer to as "piecemeal" or "backdoor amnesty." The Center For Immigration Studies published an interesting report that documents this. When reading, keep in mind that the important question is not if you do or do not support immigration reform, but if it should be sought in the "light of the debate, through the democratic process" or "shadows of federal bureaucracies, through administrative decrees." And even when a federal agency pursues ends that we desire, we should be troubled when they engage in unbridled partisanship and seek to subvert, rather than enforcing the letter and spirit of the law. Enclosed are some key excerpts from the report:

Amnesty by Any Means

Memos Trace Evolution of Obama Administration Policy

By Janice Kephart


Analysis of a series of leaked memos from within the Department of Homeland Security’s highest ranks shows 
that the Obama administration has sought for the last year and a half to form a strategy to achieve amnesty for 
the illegal population without input from Congress. The goal? Ultimately, according to a June 2010 memo, the 
administration seeks to “reduce the threat of removal for certain individuals present in the United States without  authorization.” Well aware of the potential political fallout among both Congress and the American people, the administration provided internal briefs on the pros and cons of varying strategies to gain an administrative amnesty.

The course eventually decided on appears to be the now infamous June 2011 “prosecutorial discretion” memo issued by Immigration and Customs Enforcement (ICE) Director John Morton. This memo, embraced by the White House a few weeks ago, sets a course that prevents the enforcement of immigration law, provides a de facto amnesty, and is effectively worker authorization for much of the current illegal population. The current course of non-enforcement is in contrast to the initial proposed strategies of proactive immigration law rewrites.

In this memo is a thorough analysis of the extent the Obama administration is willing to go to deceive America  into accepting unprecedented executive branch immigration law rewrites and changes in immigration processing  to get around their federal responsibility to enforce immigration law. Obama administration actions taken to peel back visa interviews abroad, reduce enforcement on our physical borders, replace worksite enforcement to worksite audits, take actions against states seeking to enforce the law but no action against sanctuary cities, and  support of only two immigration enforcement programs — Secure Communities and E-Verify — make sense  when placed against the backdrop of these memos. On September 29, 2011, more evidence that this agenda  is on track came in a Washington Post front-page story describing the Obama administration’s overt actions to discourage states from attempting to get their illegal populations under control


Four administration memos, taken together, show the evolution of the immigration law enforcement meltdown 
currently underway. The story begins in February 2010 with proposals to amend immigration law categories and policies through a series of regulatory rewrites. In addition, the memos consider prying open narrow immigration exceptions into wide cross-cutting remedies to permit the entry and legalized stay of large classes of illegal immigrants through an expensive “registration process.” “Political Considerations” riddle the first two memos, with chief concerns including “The Secretary would face criticism that she is abdicating her charge to enforce immigration laws” and “A program that reaches the entire population targeted for legalization would” be characterized by opponents as amnesty.

If DHS had pursued a policy of immigration law rewrites, a likely result would have been a cry of malfeasance; a legitimate allegation that DHS — with White House support — was subverting congressional authority to draft and pass immigration law and set the tone for immigration policy. Regulations gone awry could easily be pinned on President Obama and, if a failure, another source of negative political fallout for the president. Nonfeasance is much harder to prove. The administration, smartly, has chosen nonfeasance by simply telling ICE agents they are not to do their job. However, by asserting active support at the White House for the Morton “Prosecutorial Discretion” policies, the president remains on the hook for his public statements tying ICE non-enforcement to stated proactive policies of amnesty. In addition, his speech on May 10, 2011, in El Paso, Texas poking fun of those seeking border security by joking that they will not be satisfied until there are alligators in moats along the border, underlines a policy that is unserious about border security. Legal actions against the states seeking to support federal immigration law are also evidence that the president is actively seeking non-enforcement of immigration law not just on a federal 
level, but in states as well.

The Four Memos

DHS Headquarters Draft Memo “Administrative Options” (February 26, 2010) In this first memo drafted by individuals in the Secretary of Homeland Security’s office, staff detail various options  for achieving amnesty, under the following headings: (1) “Registration Program and Deferred Action for Current  Unauthorized Populations;” (2) “Clearing Family-Based Visa Backlogs;” (3) “Parole Immediate Relatives of U.S. 
Citizens Who Entered Without Inspection and Would Otherwise be Ineligible for Adjustment of Status;” (4) “Allow  Beneficiaries of Approved Family-Based Visa Petitions to Wait in the U.S.;” (5) “Expanded E-Verify;” and (6) “Political Considerations.”

The memo highlights the use of a “quick” registration program using “deferred action” granted to as large a portion  of the illegal population in order that their employment be legalized as easily and quickly as possible. “Deferred action” is not law, but an administrative remedy inferred from current regulation. A 2007 memo by the USCIS Ombudsman (an internal watchdog) explains deferred action as follows:

“There is no statutory basis for deferred action, but the regulations reference this form of relief and provide a brief description: “[D]eferred action, an act of administrative convenience to the government which gives some cases lower priority….” Where USCIS grants a request for deferred action, the foreign national is provided employment authorization. According to informal USCIS estimates, the vast majority of cases in which deferred action is granted involve medical grounds.”

This February 26, 2010 DHS headquarters draft memo begins by describing how, in the “absence of legislation … the Secretary of Homeland Security [could] grant eligible applicants deferred action status.” The only individuals excluded would be those “individuals who pose a security risk.” On the second page, the “pros” and “cons” of using deferred action to provide a baseline for a “registration program” are laid out. Key items in both categories include: 

“Pros: Transform the political landscape by using administrative measures to sidestep the current state of Congressional gridlock and inertia.

“Cons: Internal complaints of abdicating our charge to enforce immigration law from career DHS officers are likely and may be used in the press to bolster such arguments.

“Cons: Reaching an entire population for legalization would use deferred action way beyond a scale it has ever been used for before, and Congress may respond by trimming back our deferred action authority, or simply negating it, since deferred action is temporary and revocable by its nature.” 

In the “Political Considerations” section which concludes the memo, DHS headquarters staff review the best time to attempt to persuade America with their “carefully crafted” message that helps the President and fellow Democrats and hurts Republicans, while wooing Latino voters: 

The right time for administrative action will be late summer or fall — when midterm election season is in full swing… The administration would have to boldly drive the narrative. President Obama and the Administration would assert that they are stepping into the breach created by congressional gridlock and moving aggressively to solve a vexing problem that three consecutive Congresses have tried by failed to fix. Flanked by Secretaries Napolitano, Solis, Locke, Holder, and Vilsac, the President could make the case that the nation’s economic and national security can wait no longer for Congress…"

“This message would have to be carefully crafted to avoid being met with hostility by Democratic members 
of Congress who are trying to defend their seats in midterm elections. A potential strategy to sell the most 
ambitious administrative proposal would be to combine them (all the proposals above) with a call for a vote 
on a mandatory E-Verify. The President could join Reid and Pelosi to challenge Congress to enact such 
legislation. The legislative strategy would give Democrats who fear the administrative amnesty charge the 
opportunity to say they disagree with the President on amnesty, but as legislators are ready to crackdown 
on illegal workers. It would also help insulate Democrats from the charge of being a “do-nothing Congress” 
on the issue. This also places Republicans in a difficult position: a vote for enforcement helps endorse the 
President’s overall strategy while a vote against is a vote for the status quo."

“In this scenario, the Administration and Congressional leadership would be viewed as breaking through 

Washington gridlock in an effort to solve tough problems. Giving nervous Members of Congress something 

tough to vote for while providing Latino voters with something they could support would be a win-win for 


The memo’s last paragraph, however, suggests that the plan is too ambitious, and could put the administration in a
worse position to achieve amnesty than doing nothing at all:

“If the American public reacts poorly to an administrative registration effort, Congress could be motivated to 

enact legislation tying the Administration’s hands. This could result, in the worst case scenario, in legislation 

that diminishes the Secretary’s discretion to use parole or deferred action in other contexts. A heated fight 

could also poison the atmosphere for any future legislative reform effort.”

USCIS General Counsel Memo to Director Alejandro Mayorkas on “Administrative Alternatives to Comprehensive Immigration Reform” (June 20, 2010)

This 11-page memo from the four major sections of USCIS to USCIS Director Alejandro Mayorkas focuses on legal methods of extending and widening existing statutory immigration benefits to “reduce the threat of removal” for most illegal aliens. Perhaps most disturbing is a strategy whereby the administration would cherry pick when to use certain remedies or traditional enforcement tools, building on the discussion of “deferred action” in the DHS Headquarters memo. Where “no relief appears available based on an applicant’s employment and/or family circumstances, but removal is not in the public interest, USCIS could grant deferred action” which would allow the illegal alien “to live and work in the U.S. without fear of removal.” 5) Center for Immigration Studies The memo lists a series of options which “used alone or in combination — have the potential to result in meaningful immigration reform absent legislative action.” These options focus on (1) family unity; (2) economic growth; (3) process improvements; and (4) “protection of certain individuals or groups from the threat of removal.” In the last section on protecting illegal groups from the threat of removal, “deferred action” tops the list and infers ICE’s role in supporting amnesty by doing nothing, defining it as follows: “Deferred action is an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time.” The value? “Individuals who have been granted deferred action may apply for employment authorization.” Moreover, most immigration components can invoke deferred action, widening its application: “within DHS, USCIS, Immigration and Customs Enforcement, and Customs and Border Protection all possess authority to grant deferred action.”

ICE Director Morton Memo “Priorities for the Apprehension, Detention, and Removal of Aliens” (March 2, 

With this third memo, nearly a year later and with no real movement or support for amnesty in Congress or in the public, ICE begins to emerge as shouldering amnesty in a thinly veiled memo to agents in the field. In this March 2011 memo, ICE Director Morton makes clear that only a small percentage of illegal aliens will be prioritized for removal — terrorists, violent criminals, felons, and repeat offenders. Even fugitives from the law are prioritized with regard to whether they have been convicted of a violent crime. In this memo, Morton states that apprehensions isted as “low priority” — such as illegal aliens convicted of drunk driving — are still available for prosecution, but the lowest priority. The next memo negates even these cases.

ICE Agents Speak Up

The upshot of Morton’s “prosecutorial discretion” memo was another vote of No Confidence by the ICE Union11 on June 23, 2011. On July 26, 2011, Chris Crane, President of the ICE Union, testified
12 before the House Judiciary Subcommittee on Immigration and Policy Enforcement. He stated that Morton’s “prosecutorial discretion” memo forced ICE agents in the field to: (1) knowingly not enforce the law against those in jail upon completion of their sentences; (2) knowingly not enforce law against fugitives and convicted criminals; and (3) knowingly not conduct criminal background checks for fear of reprisals, including losing their jobs. The insistence in the Morton memo that prosecutorial discretion is “held by the Director” means, in practice, that “ICE agents and officers will follow orders, not exercise any true discretion. Claims by ICE that this memorandum gives field agents more discretion in the field are false. The purpose of this policy is to prohibit officers and agents from arresting individuals from certain groups.”

Crane discusses how ICE management now is preventing field agents from issuing “detainers” to allow ICE to take delayed custody of illegal aliens who have finished their sentences in jails or prisons or are awaiting trial when ICE needs additional time for deportation. The purpose of detainers is to keep the individual from being released back into a community. Instead, ICE has:

“A new pilot program … directing jails to simply release aliens not yet convicted of crimes, stating that ICE 
will now only take custody of aliens who have been convicted of crimes… Large numbers of aliens will be 
released from jails. Under the previous policy, these same aliens would have been processed and required to 
appear before an immigration judge.”

Crane then explains “field arrest procedures” now being given orally, with a refusal to do so in writing: 

“Agents and officers in the field are frequently under orders not to arrest persons suspected of being the United States illegally. At times those no arrest orders include ICE fugitives, who have been ordered deported by an immigration judge, as well as individuals who have reentered the U.S. following deportation which is a federal felony.

“Agents and officers report that they are ordered not to run criminal or immigration background checks or even speak to individuals whom they reasonably suspect are in the U.S. illegally…. Situations in which officers and agents are ordered not to run criminal background checks or speak to individuals create an especially high risk to public safety as agents may unknowingly walk away from individuals who pose a public threat.”

Interestingly, these field operations procedures are strangely parallel to what officers from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) told a Congressional hearing in June 2011 pertaining to “Operation Fast and Furious.” In that operation, ATF agents were told to stand down when known Mexican drug cartel members and their proxies were using bulk cash to buy weapons at U.S. gun shops. The officers in both instances have complained of gross malfeasance on the part of their superiors in ordering them to not enforce the law, and in some cases, make direct sales to cartels undercover without those sales resulting in stings or further surveillance. Here, ICE agents are told to stand down when they have known fugitives before them and not enforce the law, knowingly releasing them back into society.


Current Obama administration immigration and enforcement standards are a purposeful subversion of the law in an effort to gain Latino voters; provide a “get out of jail free” card to many illegal immigrants in our criminal justice system; assure most of the illegal population work authorization with or without E-Verify; and sidestep Congress. The current administration’s rhetorical support for mandatory E-Verify is not really about the value of E-Verify in ensuring a legal work force, but more centered on the program’s value as a political “enforcement” mask to distract voters from a de facto amnesty. This conclusion is based on evidence throughout high level administration memos that spanned the past year and a half.

These memos reflect an open strategy to undermine federal immigration law and its enforcement in order to legalize large swathes of the illegal population, including those about whom we know little and are in detention pending court appearances, potentially granting legality to arrested terrorists and violent criminals. Thus, nearly the entire illegal population could gain amnesty, including many who may pose a threat to public safety. 

America is not safer when its laws are ignored and the balance of power created by the Constitution between the executive and representative branch is undermined by political agendas that run contrary to both economic and national security. The Obama administration in these memos does little more than invite illegality and insecurity, creating “mission meltdown” not only for ICE, but across our immigration and border security system. Now that the “amnesty by any means” policy is in force with the backing of President Obama, and those that stand in the way at the federal or state level are being bullied with lawsuits or threats of job loss, we are officially distracted as a nation from achieving the homeland security that was such an obvious and necessary goal after 9/11. 

No comments:

Post a Comment