Politics & Policy

No Illegal Alien Left Behind

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Obama’s executive action is sweeping, but Congress can regain some control over the process.

It starts now. Immigration-enforcement officers around the country were ordered to open up their case files this weekend to begin identifying those illegal aliens in their custody who qualify to be exempt from deportation under President Obama’s executive action announced Thursday night. This action effectively covers all illegal aliens who arrived before January 1, 2014 and are not convicted of crimes that the administration considers to be serious. The immigration-enforcement agencies will begin releasing hundreds of these illegal aliens (the majority of whom are convicted criminals, according to ICE records) as early as next week.

That will be the first, and most expansive, phase of the president’s immigration-reform plan to go into effect. The other layers of the massive amnesty scheme, including the issuance of millions of new work permits and travel documents to certain broad and narrow categories of illegal aliens, will be implemented over the next several months, if Congress allows it.

What the president calls “immigration reform” can be more accurately described as the dismemberment of immigration law with the purpose of providing some degree of amnesty to nearly all of the estimated 11.5 million illegal aliens now living in the country, and negating any enforcement action that was taken against them in the past. The plan is articulated in a series of interlocking memoranda signed by Department of Homeland Security secretary Jeh Johnson published after the president’s speech.

Here are the most significant elements of the plan:

Expansion of “prosecutorial discretion.” Immigration-enforcement officers, including the Border Patrol, ICE, and port-of-entry inspectors, have been instructed to refrain from arresting, questioning, detaining, or seeking to deport aliens unless they are terrorists, spies, gang members, or convicted felons, or have committed serious or repeated misdemeanors, or are “significant” visa over-stayers, arrived after January 1, 2014, or who have just been caught trying to enter illegally. Even if they qualify as an enforcement priority, if they have family members who have legal status, or if they are “ill” or have family members who are ill, or if they have “community ties” here, they can be let off.

The administration’s faux justification for repeatedly narrowing the criteria under which immigration officers are allowed to arrest illegal aliens is that they have limited resources for enforcement and that if they use them to deport non-criminal illegal aliens, ICE will be distracted from deporting those who are murderers, rapists, and drug dealers. The president says that he wants ICE to focus on “felons, not families.”

The reality is that stricter and stricter “prosecutorial discretion” has not led to smarter enforcement, just less enforcement, and to fewer criminals’ being removed, too. Total deportations by ICE have dropped from 410,000 in 2012 to 316,000 in 2014. Deportations of criminals, who are supposedly the focus, have dropped from 225,000 in 2012 to 178,000 in 2014. Moreover, about two-thirds of these deportations are aliens caught at the border. In 2014, ICE deported only about 100,000 aliens from the interior, a decline of about 60 percent since Obama took office.

Next year’s numbers are sure to dip further. The new policy says that anyone who was deported before 2014, or who skipped out on deportation proceedings in a prior year, will be allowed to stay, too; this executive order essentially invalidates any enforcement action taken before 2014.

The president said that the purpose of this narrowing of the criteria for deportation was to focus on criminals, but at the same time he issued an order to end Secure Communities — the successful fingerprint-based information-sharing system that notifies ICE when an illegal alien is booked into a jail. Now, with Secure Communities, ICE can work with jails when they have in custody an illegal alien whom ICE would like to deport. Under the new “improved” program, ICE will have to wait for the local sheriff to notify it when an alien is getting released from jail before it can take action. Sanctuary jurisdictions can refuse to notify ICE, and agents will have to track down criminal aliens in the community — a much more hazardous and costly process.

As many as 6 million illegal aliens could be off the hook (not including those potentially eligible for work permits, described below).

Work permits and waivers. Living up to the old saying that if you give some people an inch they’ll take a mile, the president announced plans to expand on the Deferred Action for Childhood Arrivals program, in which more than 520,000 illegal aliens aged 30 or younger who claimed to have been brought here as children (the so-called “Dreamers”) were issued work permits and de facto legal status. Now he has promised to offer the same deal to “a broader class of children” — that is, to Dreamers who are now over the age of 33. It is estimated that this action will cover about 200,000 people. They can begin applying in three months, although they will be protected from deportation until then, and released if currently detained. The work permits and legal status will be valid for three years, and those issued in the earlier DACA program will be extended for another three years.

Even more significant, the president is offering three-year work permits and legalization to illegal aliens who are the parents of U.S. citizens or green-card holders and who claim to have been in the country for five years or more. The program is expected to cover another 3.7 million illegal aliens, who can begin applying in six months. Until then, they are off-limits for ICE; according to an ICE supervisor, “if an alien simply claims to have a [citizen] child, and wants to apply for deferred action, we are not to ask them for proof — accept their claim at face value, and release them to apply.”

Like the Dreamers, those legalized under this deferred-action program, which is absurdly called an immigrant “accountability” program, are held to a lower standard of eligibility than are immigrants who are admitted through the legal programs. They need not demonstrate financial independence or employability, and any prior incidents of identity fraud or isolated misdemeanors are excused, including illegal drug possession or drunk driving — all of which will disqualify most applicants for legal immigration. And, of course, like DACA, few will be found ineligible, and almost none of those who are refused will be deported.

But that’s not all. The president is negating a section of immigration law that penalizes some illegal aliens who are sponsored for green cards by forcing them to wait outside the country for as long as ten years. Two years ago he exempted relatives of U.S. citizens, and now he is exempting all illegal-alien green-card applicants with a bureaucratic sleight of hand known as the “provisional waiver program.” Career immigration officials have dubbed it the “Marriage Fraud Incentive Act,” because it removes one of the key deterrents to sham marriages for green cards.

Parole and “practical training.” The big-business interests that have funded much of the lobbying campaign for amnesty and immigration expansion would have been sorely disappointed if there were no executive actions to help them avoid hiring Americans. The president found something in his bag of tricks for them, too. Since 2007, foreign students in science, technology, engineering, and mathematics (STEM) have been allowed to work in the United States for up to 29 months while enrolled in school or after graduating, under the pretense of “optional practical training.” There’s no real training required; it’s really just a cheap-labor work permit that is used by about 70,000 students each year. Without getting into details: The president ordered the immigration agencies to expand this dubiously beneficial program to more students in fields other than STEM and allow them to work for longer periods of time. Never mind the 8.5 unemployment rate and 17.5 under-employment rate for newly minted American college grads.

The president wants to add a new category of green card for “entrepreneurs” but lacks the constitutional authority to do that. Instead he announced that such individuals will be waved in as “parolees.” Parole is a catchall category that is supposed to be used for exceptionally compelling humanitarian cases, but under the Obama administration it has been used for illegal aliens with relatives in the military and for Central American families who came in the recent border surge. It is a form of legal status that offers a path to citizenship, which deferred action does not.

These edits leave no illegal alien without an opportunity to argue for permission to stay. Immigration officers and judges are encouraged to exercise discretion with illegal aliens who are not singled out for relief in the policies but are nevertheless not deemed “a threat to the integrity of the immigration system.” Isn’t every illegal alien by definition a threat to the integrity of the immigration system?

The president has gone very, very big on this plan, and if Congress allows it, there will be consequences for the communities that will have to absorb the costs. These will include huge new outlays for welfare benefits and social services for those who get deferred action. Media outlets have made a point to mention that they will not qualify for Obamacare-insurance subsidies, but they would get Social Security numbers and driver’s licenses, which are a gateway to every other taxpayer-funded benefit. Work permits and licenses are just the beginning; there will be pressure to allow them to travel abroad and to be joined by family members from overseas.

In the short run, Congress likely can regain some control over immigration by using its spending authority. In particular, it might try to regulate use of the fee revenues collected by USCIS (U.S. Citizenship and Immigration Service), the agency that processes work permits and other immigration benefits, with the goal of preventing that revenue, which comes from legal immigrants and their sponsors, from being used to carry out the president’s plan. That could thwart the work permits, though probably not the dismantling of enforcement.

Then, Congress can calmly begin the step-by-step process of passing constructive immigration-reform bills, starting with measures to shore up enforcement. That might also include less-irresponsible versions of some of the president’s executive-action agenda, including eventually amnesty for some of the illegal population — but that could be balanced by cutting out some existing green-card categories. GOP leaders cannot ignore the gauntlet that has been so flamboyantly thrown down, but the response should be purposeful.

— Jessica Vaughan is director of policy studies at the Center for Immigration Studies.

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