Leaked Agency Memo Reveals Intent to Grant Amnesty by Regulation
An official memo surfaced last week revealing the Administration’s intent to circumvent Congress on immigration policy and grant amnesty administratively. In the memo, entitled “Administrative Alternatives to Comprehensive Immigration Reform,” senior officials at U.S. Citizenship and Immigration Services (USCIS) offered Director Alejandro Mayorkas a variety of ways to “reduce the threat of removal for certain individuals present in the United States without authorization” and extend benefits and protections to many individuals and groups until amnesty is granted. (To read the USCIS memo in its entirety, click here)
For illegal aliens who have been apprehended, USCIS officials recommend strategically issuing Notices to Appear (NTAs). NTAs essentially mark the action by which Homeland Security initiates a deportation proceeding. Homeland Security files the NTA with the immigration court, advising the alien of the nature of the proceedings, the alleged immigration law violations, and the consequences of failing to appear at the hearing. In the memo, USCIS officials recommend issuing NTAs to illegal aliens if the illegal alien is likely to find a loophole through during the removal process through which he/she will be granted permission to stay. However, “where no relief [for an illegal alien] exists in removal,” USCIS could simply not issue an NTA.
For illegal aliens already in deportation proceedings, these USCIS officials recommend granting “deferred enforcement,” essentially a decision by Homeland Security to not enforce a deportation order. “This,” the officials write, “would permit individuals for whom relief may become available in the future to live and work in the U.S. without fear of removal.” Generally, individuals who receive deferred enforcement also receive authorization to work in the United States.
Another option set forth in the memo is expanding the use of humanitarian parole. As the memo notes, USCIS has the discretionary authority to grant humanitarian parole for admission to the U.S. on a case-by-case basis. USCIS may grant humanitarian parole to an individual outside or inside the U.S., the latter commonly called “parole in place.” By expanding the use of parole in place, the officials argue “USCIS can eliminate the need for qualified recipients to return to their home country for consular processing” and avoid the three and ten-year bars to re-entry that usually apply to illegal aliens once they have left the country.
The memo also suggests that USCIS re-examine whether illegal aliens who leave the country but have applied for legal status should in fact be subject to the three and ten-year bars to re-entry that usually apply to illegal aliens. They remarkably suggest that “reexamining past interpretations of terms such as ‘departure’” could leave to a different outcome. The memo also suggests loosening the definition of “extreme hardship,” the basis by which USCIS may grant waivers of the three and ten-year bars.
Reaction to the USCIS memo was swift and negative. Senator Grassley (R-IA) remarked, “The document provides an additional basis for our concerns that the administration will go to great lengths to circumvent Congress and unilaterally execute a back-door amnesty plan.” (Politico, July 30, 2010). Ranking Member of the House Judiciary Committee Lamar Smith said the Obama Administration was “conspiring to implement amnesty without any Congressional action.”
In an apparent effort to backpedal, USCIS spokesman Christopher Bentley told reporters that the agency would not comment on details of the memo, which he described as an internal draft that "should not be equated with official action or policy of the Department. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges." In an e-mail, he added: the Obama administration "will not grant deferred action or humanitarian parole to the nation's entire illegal immigrant population." (ProPublica, July 30, 2010).
In an interview with FOX News on Friday, White House Press Secretary Robert Gibbs tried to minimize the USCIS memo. "The White House doesn't support amnesty and I think people that support comprehensive immigration reform don't support amnesty either,” said Gibbs. “What we need to do again is try to figure out how we're going to secure borders, deal with those that are here, but do it in a comprehensive way and do it at a federal level, because as frustrated as Arizonans are, and we understand that we can't have a patchwork of immigration laws throughout each of the 50 states." (FoxNews.com, Aug. 1, 2010).
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