Finally Administration think of DACA/DAPA alternatives

Leaked DHS memo shows Obama might circumvent DAPA injunction
By Ian M. Smith


A newly leaked internal DHS memorandum produced for an off-the-record agency conclave reveals that the Obama administration is actively planning to circumvent a federal court injunction that suspended part of last November’s deferral-based amnesty initiative. The document, apparently prepared as follow-up from a DHS “Regulations Retreat” last summer, appears sure to re-ignite concerns in Congress as well as federal judges in the Fifth Circuit. The Administration has already been criticized from the bench for handing out work permits to hundreds of thousands of deferred action beneficiaries, in direct violation of a district court’s order. With the Fifth Circuit Court of Appeals deciding any day now whether to deny the Administration’s request to reverse that injunction, this public leak has come at a critical juncture for U.S. enforcement policy.

Last June, four months after Texas federal judge Andrew Hanen’s order to freeze President’s DAPA and Expanded DACA programs—disclosure: the Immigration Reform Law Institute has filed briefs in these cases—DHS’s immigration policy makers apparently held a “Regulations Retreat” to discuss “different options” for “open market Employment Authorization Document (EAD) regulatory changes.” EAD is the statutory term for work permits. From a memo recording these discussions, we now know that the Obama DHS has, rather than pausing to allow the courts to assess the constitutionality of its enforcement nullification initiatives, been gearing up to roll out one or more of four plans drawn up at the meeting, each one designed to provide EADs to millions of nonimmigrants, including those lawfully present and visa overstayers, crippling the actual employment-based visa system on the federal statute-book.

The internal memo reveals four options of varying expansiveness, with option 1 providing EADs to “all individuals living in the United States”, including illegal aliens, visa-overstayers, and H-1B guest-workers, while option 4 provides EADs only to those on certain unexpired non-immigrant visas. Giving EADs to any of the covered individuals, however, is in direct violation of Congress’s Immigration & Nationality Act and works to dramatically subvert our carefully wrought visa system.
As mentioned, the first plan the memo discusses basically entails giving EADs to anyone physically present in the country who until now has been prohibited from getting one. A major positive to this option, the memo reads, is that it would “address the needs of some of the intended deferred action population.” Although DHS doesn’t say it expressly, included here would be those 4.3 million people covered by the president’s DAPA and Expanded DACA programs whose benefits were supposed to have been halted in the Hanen decision. On top of working around the Hanen injunction, this DHS plan would also dole out unrestricted EADs to those on temporary non-immigrant visas, such as H-1B-holders (their work authorizations being tied to their employers) and another 5 to 6 million illegal aliens thus far not covered by any of the President’s deferred action amnesty programs. By claiming absolute authority to grant work authorization to any alien, regardless of status, DHS is in effect claiming it can unilaterally de-couple the 1986 IRCA work authorization statutes from the main body of U.S. visa law. While DHS must still observe the statutory requirements for issuing visas, the emerging doctrine concedes, the administration now claims unprecedented discretionary power to permit anyone inside our borders to work.

The anonymous DHS policymakers state that a positive for this option is that it “could cover a greater number of individuals.” In a strikingly conclusory bit of bureaucratese, they state that because illegal aliens working in the country “have already had the US labor market tested” it has been “demonstrat[ed] that their future employment won’t adversely affect US workers.” The labor market, in other words, has already been stress-tested through decades of foreign-labor dumping and the American working-class, which disproportionately includes minorities, working mothers, the elderly, and students, is doing just fine. Apparently, the fact that 66 million Americans and legal aliens are currently unemployed or out of the job-market was not a discussion point at the DHS “Retreat.”

Bottom line: The memo foreshadows more tactical offensives in a giant administrative amnesty for all 12 million illegal aliens who’ve broken our immigration laws (and many other laws) that will emerge before the next inaugural in January 2016. According to the authors, one negative factor for granting EADs to illegal aliens, visa-overstayers, etc., is that they’ll still “face difficulties in pursuing permanent residence due to ineligibility or being subject to unlawful presence inadmissibility for which a waiver is required.” This is in reference to the reality that an EAD isn’t a green card and that eventually the EAD-beneficiaries are supposed to apply to ‘adjust their status,’ which cannot be done without showing evidence of lawful status. But this might change, they write. The DHS “macro-level policy goal”, we’re told, is to assist individuals to stay “until they are ready and able to become immigrants.” This would seem to say that DHS, the largest federal law enforcement agency in the nation, is banking on awarding those who’ve broken our laws and violated our national sovereignty.

Will the 26 plaintiff states that have challenged the President’s DAPA program bring this memo to the Fifth Circuit’s attention, before they issue their closely-awaited decision? If this document is indeed the cutting edge of Obama’s strategy for DHS to circumvent Judge Hanen’s injunction order, it would confirm the Administration’s bad faith and contempt both for the court and the law.

Smith is an investigative associate with the Immigration Reform Law Institute.
http://thehill.com/blogs/congress-bl...ircumvent-dapa

Well answer that phone because I fucking called it.

Can you summarize that fcken long ass article in a paragraph at most plz. What does it man for current DACA recipents?

Thanks.

Anything it takes!

Really? You were aggressively attacking anyone who mentioned that President Obama had many options to circumvent the Court.It looks like "armchair' lawyers were right.

all it takes

I looked over the memo, and it's an old draft. Basically the goal is to give an EAD to anyone with an approved I-140, regardless of legal status.

Doesn't help eDACA and DAPAs unless they fall there. Still, might be one step out of many and we'll see where it goes, as long as it inches ever so slowly to the left.

Kinda obvious that they want to crack open legalization pathways, same what happened with APs for EWI DACAs. Still, no idea what they can pull off over here. Law is somewhat restrictive here. However, there is some grand scheme at play and the only loophole I can think of is stretching Arrabally to extreme lengths - namely creating a regulation that AP doesn't trigger the 3/10 year bans for purposes of consular processing (since Arrabally ruling can be constituted this way, the court just ruled that departure using AP doesn't trigger a ban, it didn't specify any other circumstances), completely nullifying the 3/10 year ban for any legalization pathway, provided you can somehow get AP.

Having options doesn't exactly mean that they are good options. With bad options, there is a right time and a wrong time to exercise them and in the first few months were not a good time. It's still probably not a good time since the 5th still hasn't come out with an answer.

It says they have 4 options/plans, ranging from giving everybody an EAD to "certain unexpired non-visitor visas". I'd LOVE to see what's in-between the 2 extremes.
I do see a problem with the GOP, should the EAD-to-everyone version proceed, I can totally see them impeaching Obama. They were already talking about it regarding eDACA and DAPA, but this would be a LOT more serious issue in their eyes.

Then again, it might be just the Democrats trying to gain the extra votes knowing the GOP would do everything they can to stop this from going into effect, but they could say they tried everything in their power...

Interesting... color me shocked. It seems Obama is willing to take on that fight after all.