Friday, May 6, 2011

New Push For A Open And Formal Administrative Amnesty

Two steps forward, one step back. Probably what Lenin should have said. That is how the leftists in the Obama Regime are operating. Or, more accurately, inviting the radical left to criticize it, but doing what the radical left wants behind the scenes, and, slowly, pushing the boundaries leftward in a Marxian exercise of history.

The immigration bar and the radical left is again pushing Obama for a formalization of an Administrative Amnesty. It is the old strategy, claiming that the executive has discretion on whether to enforce the law in particular circumstances and expanding that to giving the executive the authority to ignore all violations of law, and, furthermore, actually give benefits to the aliens who violate the law.

The authority of law enforcement agencies to exercise discretion in deciding what cases to investigate and prosecute under existing civil and criminal law, including immigration law, is fundamental to the American legal system. Every prosecutor and police officer in the nation makes daily decisions about how to allocate enforcement resources, based on judgments about which cases are the most egregious, which cases have the strongest evidence, which cases should be settled and which should be brought forward to trial.

The Supreme Court has made it clear that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”

In the immigration context, prosecutorial discretion is exercised at every stage in the enforcement process—which tips or leads will be investigated, which arrests will be made, which persons will be detained, which persons will be released on bond, which cases will be brought forward for removal hearings or criminal prosecution, and which removal orders will be executed.
Despite the massive allocation of resources Congress has dedicated to immigration enforcement activities, the funding has limits and the agency must make thoughtful decisions about prosecutorial priorities. In fact, the President has repeatedly announced that the Administration’s interior enforcement priority is the prosecution and removal of immigrants who have committed serious crimes. To ensure that this and other prioritization decisions are followed and implemented, it is not uncommon for law enforcement agencies within and outside of the immigration context to provide clear guidance and training to its officers about the exercise of prosecutorial discretion. This type of guidance is not unusual. In fact, numerous memos have been issued by the DHS and its predecessor INS over the years setting forth agency priorities and seeking to provide its officers with clear guideposts for carrying out those priorities. The challenge is often in ensuring that such guidance is understood and followed on the front lines of immigration enforcement.
Prosecutorial discretion can be exercised on a case-by-case basis with respect to individuals who have come into contact with law enforcement authorities. Or the government can exercise prosecutorial discretion by allowing individuals from explicitly defined groups that it does not consider to be enforcement priorities to ask affirmatively that discretion be applied in their case.
This exercise of executive authority is not contrary to current law, but rather a matter of the extension and application of current law to contemporary national needs, values and priorities.

Of course they trot out the old "deferred action" myth that was dropped from the legacy INS Operating Instructions because it had no basis in law, and it still does not have any legal basis.

The executive branch, through the Secretary of Homeland Security, can exercise discretion not to prosecute a case by granting “deferred action” to an otherwise removable (colloquially referred to as “deportable”) immigrant.
The former INS had guidelines in the form of “Operations Instructions” regarding the granting of deferred action. These guidelines provided for deferred action in cases where “adverse action would be unconscionable because of the existence of appealing humanitarian factors.”

Currently, deferred action is considered to be “a discretionary action initiated at the discretion of the agency or at the request of the alien, rather than an application process.”

DHS has also described deferred action as an exercise of agency discretion that authorizes an individual to temporarily remain in the U.S. Regulations describe deferred action as “an act of administrative convenience to the government which gives some cases lower priority” (for enforcement action).

DHS has stated in recent correspondence with the Hill that factors to be considered in evaluating a request for deferred action include the presence of sympathetic or compelling factors.
Deferred action does not confer any specific status on the individual and can be terminated at any time pursuant to the agency’s discretion. DHS regulations, however, do permit deferred action recipients to be granted employment authorization.

Of course any good attorney will tell you, if an alien can request it, then all aliens can request it. That of course means that it is, in fact, an application. The distinction between an application and a request does not exist. And once one alien requests a status, all will have that right to the same status. If a request is denied, then, as a matter of course, that alien will have access to judicial review, as the government cannot grant a benefit without there being a due process. To do so would open the government to a myriad of claims based on equal protection of the law.

The fact that there is no legal basis, process, or even a form to complete is of no import to the immigration bar and the left. The want the foot in the door, or the camel's nose under the tent, so the activist bench can grant more rights to the illegal alien. It is quite a stretch to claim that because of limits on resources not all illegal aliens encountered by government officials can be arrested and processed to the claim that the executive can ignore the law in a wholesale manner.

The Obama Regime sympathizes. But Obama himself has stated that he cannot do what the immigration bar is demanding, but he is actually implementing that policy behind the scenes, as has been shown in detail on this blog. Whether it be just not arresting illegal aliens, or granting deferred action to illegal alien students, or just ignoring whole groups of aliens in certain geographic areas, the amnesty that the immigration bar is demanding is ongoing.

The finishing touch though is that the immigration bar itself admits that the Immigration Act of 1990 makes deferred action, extended voluntary departure and deferred enforced departure unlawful:

Every Administration brings its own view and interpretations to bear as it implements newlyenacted laws. These views have commonly been expressed in Presidential “signing statements” that indicate how the President intends to implement any given law and whether he considers any specific provisions of a law to be unconstitutional. For example, when President George H.W. Bush signed the Immigration Act of 1990 into law, he took specific exception to the provision of law making Temporary Protected Status the sole basis for allowing non-citizens [aliens ed. note.] to remain temporarily in the United States based on nationality or region of origin. He stated, “I do not interpret this provision as detracting from any authority of the executive branch to exercise prosecutorial discretion in suitable immigration cases. Any attempt to do so would raise serious constitutional questions.

There we have it, unlawful and solely based on signing statements that the left condemned when it dealt with water boarding.

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