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  • Article: President Obama’s use of executive discretion could have unintended consequences if Donald Trump becomes our next president. By Nolan Rappaport

    President Obama’s use of executive discretion could have unintended consequences if Donald Trump becomes our next president

    by


    If you are having difficulty viewing this document please click here.

    Reprinted with permission.


    About The Author

    Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice doing visa petitions for the Catholic Church and international corporations at Steptoe & Johnson.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 22 Comments
    1. Retired INS's Avatar
      Retired INS -
      Very good analysis. If a President Trump wanted to have mass deportation hearings, it would still take a long time. To have 11 million people deported, with 1,000 aliens per deportation hearing, would still require 11,000 such deportation hearings. After the first few arrests, people could move and not give a change of address. I don't see ICE using information from DACA to deport very many people. Even if they could, it would take a long time. If you assigned 1,000 agents to this, and they arrested 20 people per day (I was once an INS special agent - 20 is a lot to average per day per officer), it would still take several years just to arrest everyone and issue Notices to Appear. There is not enough jail space for 11,000,000 so they would be on their honor to show up for hearings and for deportation. Donald Trump can talk the talk, but can he really walk the walk?
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      You are right that Trump would not be able to deport 11 million aliens, but Obama has given him an unlimited supply of easy deportation cases that could be run through removal proceedings on a production line basis. With 250 judges and several 50-person group hearings a day by each judge, he could run through thousands every day. And he could detain them at military bases until removal. It would be a disaster for the immigrant community and our country generally. I would expect many undocumented immigrants to give up and go home. But my point is not that Trump would succeed. It's that we need to cut a deal with the republicans now, before something like that happens. Better to settle on a bill that no one likes but meets essential political needs than to risk a disaster. Or, Obama could stop the DAPA program before millions of undocumented immigrants put themselves at risk by applying for it.
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Nolan Rappaport View Post
      You are right that Trump would not be able to deport 11 million aliens, but Obama has given him an unlimited supply of easy deportation cases that could be run through removal proceedings on a production line basis. With 250 judges and several 50-person group hearings a day by each judge, he could run through thousands every day. And he could detain them at military bases until removal. It would be a disaster for the immigrant community and our country generally. I would expect many undocumented immigrants to give up and go home. But my point is not that Trump would succeed. It's that we need to cut a deal with the republicans now, before something like that happens. Better to settle on a bill that no one likes but meets essential political needs than to risk a disaster. Or, Obama could stop the DAPA program before millions of undocumented immigrants put themselves at risk by applying for it.
      I doubt we have enough room on abandoned military bases for the number who could be arrested. The problem is that neither political party is willing to let the other party take credit for anything good. Democrats could have joined President Bush and put through a good bill, but wouldn't. The Republican House will not agree to anything. They lie about any benefit being amnesty. I am a republican and I find it amazing how both parties lie or fail to understand the immigration issues.
    1. Concerned Voters's Avatar
      Concerned Voters -
      Trump would not have to deport all 12 million people. He would simply need to change a few things: 1. Place all DACA into deportation proceedings. 2. End catch and release. 3. Apply expedited removal nationwide. 4. Cancel TPS for El Salvador and Nicaragua. 5. Sue each sanctuary city. 6. Sue sponsors of legal immigrants. Trump could, in one day, shift the environment for immigrants. He would physically need to deport about 1/3, and the rest would probably leave on their own volition.
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      I agree with Concerned Voters that Donald Trump or some other enforcement minded republican president wouldn't have to deport millions of people to make the United States a very unpleasant place for undocumented immigrants. President Obama has opened Pandora's Box with his prosecutorial discretion policies and his temporary legal status programs. And Hillary Clinton, who is likely to be the candidate for the democrats, has said that she will go even further with these policies and with temporary legal status programs.
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Concerned Voters View Post
      Trump would not have to deport all 12 million people. He would simply need to change a few things: 1. Place all DACA into deportation proceedings. 2. End catch and release. 3. Apply expedited removal nationwide. 4. Cancel TPS for El Salvador and Nicaragua. 5. Sue each sanctuary city. 6. Sue sponsors of legal immigrants. Trump could, in one day, shift the environment for immigrants. He would physically need to deport about 1/3, and the rest would probably leave on their own volition.
      I spent 39 years as an immigration officer and was responsible for the deportation of thousands of illegal aliens (many who were well documented). I was also part of the USCIS upper management that reviewed and commented on DACA before it went to President Obama. I wrote at length why I opposed the plan, but I was ignored. Let me comment on your thoughts: (1) To use the DACA information for deportation is wrong - how can future Presidents make promises if this is done? It is the parents, not these children, who are responsible; (2) I agree completely that catch and release is stupid and should end; (3)Expedited removal applies to specific types of cases - it should be used where appropriate; (4) TPS is often overused - I dealt with thousand of illegal aliens from El Salvador - there is a political issue with these countries that goes beyond the need for TPS. El Salvador currently uses the U.S. dollar as it legal tender. The correct answer to this is not simple; (5)I agree completely that sanctuary cities are defying the U.S. Constitution and all federal funding to these cities should end until they drop their defiant attitude. I would go further and charge the D.A. and Sheriff in San Francisco with complicity in the murder of Kate Steinley. This was not a sanctuary city action. The alien who killed her was in ICE custody and the District Attorney asked for him to be released to the city so he could be prosecuted for a drug charge. She changed her mind and didn't prosecute. The city cannot argue, as in general sanctuary city cases, that there was no legal proof he was an illegal alien. The city should be sued by the family. (6) To sue the sponsors of legal immigrants is silly. No laws have been broken. Instead, change the law on support of legal aliens by those who petition for them. The current law does not require support, but only permits the legal alien to sue the sponsor for non-support. Few such aliens choose to sue their sponsor. After 5 years they can apply for citizenship and the sponsor agreement ends.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Making mass deportation easier might not be the only consequence of electing Trump president. Another consequence could be turning America into a torture "republic" run by an imperial presidency. See William Saletan, slate.com Donald Trump's barbarism.

      www.slate.com/articles/news_and_politics/politics/2016/03/donald_trump_s_plan_for_plunging_america_into_barbarism.html

      We should also not forget the connection between mass deportation of unpopular racial or ethnic groups and the loss of freedom for the citizens who remain behind that was made clear by the experience of Nazi Germany, to give one example. With or without a list of names inadvertently made available through President Obama's well meaning attempt to help millions of Latino and Asian immigrants escape the consequences of Republican attempts to curry favor with anti-immigrant white voters through obstruction of comprehensive immigration reform, we can be sure that President Trump's "jackboots" (to use the expression of no less that Senator Cruz, who is not exactly a supporter of legalization himself), will be active in conducting midnight raids on millions of homes throughout America, tearing families of Latino and Asian American citizens and legal residents apart as well as the families of "illegals", and locking millions of non-white immigrants up in concentration camps throughout America.

      Given Donald Trump's addiction to violence and torture, as expressed in his comments and his frightening, totally un-American harassment of real or suspected protesters at his rallies (see: http://www.politico.com/story/2016/0...ck-down-220407) what assurance do the American people have that if he is elected, America will not descend into a full blown fascist dictatorship of which mass deportation was only the prelude?

      Roger Algase
      Attorney at Law
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      In my previous comment, I did not respond specifically to Nolan's claim that President Obama's DACA's program was an example of alleged "executive overreach" that Trump could use as justification for his own authoritarian agenda. Assuming for the purposes of argument that Nolan is serious about making such an argument, I would respectfully point out the difference. DACA is based on more than a century of broad executive power over immigration in America that has been consistently recognized by the courts.

      On the other hand, Trump's agenda of violence, torture and intimidation, against immigrants and US citizens alike, is more typical of a governmental system which originated and held sway in Germany and Italy in the first part of the 20th century than it is of American democracy. Nolan may not be able to see that difference. I would suggest that he take another look.

      Roger Algase
      Attorney at Law




    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      Quote Originally Posted by ImmigrationLawBlogs View Post
      In my previous comment, I did not respond specifically to Nolan's claim that President Obama's DACA's program was an example of alleged "executive overreach" that Trump could use as justification for his own authoritarian agenda. Assuming for the purposes of argument that Nolan is serious about making such an argument, I would respectfully point out the difference. DACA is based on more than a century of broad executive power over immigration in America that has been consistently recognized by the courts.

      On the other hand, Trump's agenda of violence, torture and intimidation, against immigrants and US citizens alike, is more typical of a governmental system which originated and held sway in Germany and Italy in the first part of the 20th century than it is of American democracy. Nolan may not be able to see that difference. I would suggest that he take another look.

      Roger Algase
      Attorney at Law




      DACA is not based on a century of broad executive power. No other president has established programs that would provide temporary lawful status and work authorization to more than five million aliens who are in the US in violation of our laws. I don't know whether President Obama's actions are legal, but it is apparent that he has stretched the reach of executive discretion. As for my hypothetical exercise of executive discretion under a Trump presidency, I was careful to base most of the measures on the promulgation of federal regulations and statutory authority. I won't comment on Roger's dire predictions for a Trump presidency in other areas that have nothing to do with immigration policy.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      It is true, as Nolan points out, that my "dire" predictions of a fascist dictatorship under President Trump go beyond immigration policy. But they begin with immigration policy, with the same kind of mass exclusion of Muslims and mass deportations of Mexican and other minority immigrants, with the prospect of midnight raids by Trump's special task force "jackboots" (again, Senator Cruz' term, not mine originally), with the likely internment of up to 12 million people in concentration-camp like conditions, that so much resemble the Nazis' actions toward the Jews in the 1930's soon after Hitler took power (and before the actual genocide known as the "final solution" or Holocaust began around 1940).

      If Nolan wants to draw a parallel between President Obama's immigration policies and authoritarian or unconstitutional executive action, he need look no further than to the inhuman conditions in which the Obama administration is now detaining Central American children and their mothers fleeing violence and, very likely, death in their home countries. If anyone wants to talk about Obama's abuse of executive power, that is the place to begin.

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Nolan Rappaport View Post
      DACA is not based on a century of broad executive power. No other president has established programs that would provide temporary lawful status and work authorization to more than five million aliens who are in the US in violation of our laws. I don't know whether President Obama's actions are legal, but it is apparent that he has stretched the reach of executive discretion. As for my hypothetical exercise of executive discretion under a Trump presidency, I was careful to base most of the measures on the promulgation of federal regulations and statutory authority. I won't comment on Roger's dire predictions for a Trump presidency in other areas that have nothing to do with immigration policy.
      DACA is based on the old INS discretionary policy called "deferred action", which was called "non-priority" before John Lennon's attorney won a lawsuit and made the policy public knowledge. When I joined the INS in 1972 the non-priority, and later deferred action policy was printed on blue pages in our law books, and were not available to the general public. Later, after the Lennon case, the policy was printed on white pages. Deferred action was given for extremely humanitarian cases when deportation of the individual would cause great harm to the person or to a close relative who was here legally. My first deferred action case came in 1978 and involved a 23 year old girl with down's syndrome who was brought to the United States by the wife of a State Department employee. The baby had been in an orphanage and a nun gave the baby to the woman doing volunteer work at the orphanage in Pakistan. The family arrived at McGuire Air Force Base in New Jersey and was never inspected. The child was not adopted before the age of 16, so there was nothing we could legally do to make the child legal. We could not deport a 23 year old with downs syndrome who did not speak the language of Pakistan and had no means of caring for herself. Deferred action was intended for such cases, not as a means of allowing large groups of people to stay. Worse yet, there is not interview for DACA. Cases are granted if they meet minimal requirements. During my 39 year career I submitted about 8 deferred action cases. All of them had extreme humanitarian concerns.
    1. Nolan Rappaportk's Avatar
      Nolan Rappaportk -
      Quote Originally Posted by Retired INS View Post
      DACA is based on the old INS discretionary policy called "deferred action", which was called "non-priority" before John Lennon's attorney won a lawsuit and made the policy public knowledge. When I joined the INS in 1972 the non-priority, and later deferred action policy was printed on blue pages in our law books, and were not available to the general public. Later, after the Lennon case, the policy was printed on white pages. Deferred action was given for extremely humanitarian cases when deportation of the individual would cause great harm to the person or to a close relative who was here legally. My first deferred action case came in 1978 and involved a 23 year old girl with down's syndrome who was brought to the United States by the wife of a State Department employee. The baby had been in an orphanage and a nun gave the baby to the woman doing volunteer work at the orphanage in Pakistan. The family arrived at McGuire Air Force Base in New Jersey and was never inspected. The child was not adopted before the age of 16, so there was nothing we could legally do to make the child legal. We could not deport a 23 year old with downs syndrome who did not speak the language of Pakistan and had no means of caring for herself. Deferred action was intended for such cases, not as a means of allowing large groups of people to stay. Worse yet, there is not interview for DACA. Cases are granted if they meet minimal requirements. During my 39 year career I submitted about 8 deferred action cases. All of them had extreme humanitarian concerns.
      That's my understanding too. DACA and DAPA are unprecedented expansions of executive discretion. As I said in my article, PEW estimates that these programs will give temporary lawful status and work authorization to 5.4 million undocumented immigrants. And as you have indicated, it will be done hastily without even conducting an in person interview. We won't know who they really are or where they are from.
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Nolan Rappaportk View Post
      That's my understanding too. DACA and DAPA are unprecedented expansions of executive discretion. As I said in my article, PEW estimates that these programs will give temporary lawful status and work authorization to 5.4 million undocumented immigrants. And as you have indicated, it will be done hastily without even conducting an in person interview. We won't know who they really are or where they are from.
      My oldest daughter worked for the Republican Congressman who originally proposed the Dream Act. He was later defeated in a Republican caucus primary - he was seen as being too soft on immigration. I like the Dream Act. The children did nothing wrong. However, it is up to Congress to take action. Every year when I worked for immigration we were told that we could use prosecutorial discretion to not take an action, such as deportation. However, we could not use it to grant a benefit, such as employment authorization. DACA and DAPA violate the rule about not using prosecutorial discretion to grant a benefit. I have done some volunteer work to help DACA eligible youth apply for a benefit, but just because I am helping does not mean I believe support DACA or DAPA. I am just trying to keep they from falling victim to con artists who would take their money. The non-profit I am helping charges nothing. Several California farming families have donated money to help these youth apply. I can oppose DACA and still make sure those here illegally are not taken advantage of.
    1. Pipo's Avatar
      Pipo -
      An Executive Order and/or an Administrative Action that require any sort of compulsory mass deportation of undocumented immigrants will indeed elicit social unrest in many parts of this country, a scenario never seen before – nor Law Enforcement or the National Guard (or the US Armed Forces by extension) are prepared to cope with that situation.

      Demographics in the United States have already (dramatically and irreversibly as well) changed the American landscape in most states of the Union, thus enforcing stringent immigration policies targeting undocumented immigrants will be virtually impossible.

      Mr. Rappaport apparently doesn’t understand that America no longer has the leverage it used to enjoy decades ago (today is a superpower in decline, geopolitically speaking) plus the domestic and external backlash Donald Trump will face for every single policy he may try to implement.

      The elephant in the room that nobody wants to talk about or accept as fact: Americans' ignorance and gullibility, and Trump supporters honor such assessment indeed. In times of economic upheaval there will always be a scapegoat, and this time the undocumented population seems to be perfect target to justify all America's problems.

      The following quote summarizes the impending course of events in US history:
      "People as uninformed and as gullible as Americans have no future. Americans are a dead people that history is about to run over."
      Dr. Paul Craig Roberts - Assistant Secretary of the Treasury for Economic Policy during the Reagan administration

      End of story.
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      Quote Originally Posted by Pipo View Post
      An Executive Order and/or an Administrative Action that require any sort of compulsory mass deportation of undocumented immigrants will indeed elicit social unrest in many parts of this country, a scenario never seen before – nor Law Enforcement or the National Guard (or the US Armed Forces by extension) are prepared to cope with that situation.

      Demographics in the United States have already (dramatically and irreversibly as well) changed the American landscape in most states of the Union, thus enforcing stringent immigration policies targeting undocumented immigrants will be virtually impossible.

      Mr. Rappaport apparently doesn’t understand that America no longer has the leverage it used to enjoy decades ago (today is a superpower in decline, geopolitically speaking) plus the domestic and external backlash Donald Trump will face for every single policy he may try to implement.

      The elephant in the room that nobody wants to talk about or accept as fact: Americans' ignorance and gullibility, and Trump supporters honor such assessment indeed. In times of economic upheaval there will always be a scapegoat, and this time the undocumented population seems to be perfect target to justify all America's problems.

      The following quote summarizes the impending course of events in US history:
      "People as uninformed and as gullible as Americans have no future. Americans are a dead people that history is about to run over."
      Dr. Paul Craig Roberts - Assistant Secretary of the Treasury for Economic Policy during the Reagan administration

      End of story.
      I am not a Trump supporter. And I have not recommended mass deportations. I have just tried to get people to understand that Obama has created serious problems by stretching executive discretion and creating a list with the names and addresses of millions of people who have acknowledged that they are aliens living in the US in unlawful status. The next republican president is almost certain to take advantage of Obama's actions to stretch executive discretion in the other direction, whether it is Trump or someone else. This really isn't about Donald Trump. It's about unintended consequences of President Obama's efforts to help the undocumented people in the US.
    1. Marcel Lecomte's Avatar
      Marcel Lecomte -
      Quote Originally Posted by Nolan Rappaport View Post
      I am not a Trump supporter. And I have not recommended mass deportations. I have just tried to get people to understand that Obama has created serious problems by stretching executive discretion and creating a list with the names and addresses of millions of people who have acknowledged that they are aliens living in the US in unlawful status. The next republican president is almost certain to take advantage of Obama's actions to stretch executive discretion in the other direction, whether it is Trump or someone else. This really isn't about Donald Trump. It's about unintended consequences of President Obama's efforts to help the undocumented people in the US.
      The legal precedence has effectively been established since February 19th, 1942 via Executive Order 9066; therefore, President Obama's so-called "Executive Actions" on immigration (in reality Administrative Actions and NOT Executive Orders, as wrongly portrayed by mainstream media and Obama's detractors) are irrelevant, regardless if they are beneficial or detrimental to the undocumented immigrant population in the United States.

      During times of war and under the grounds of National Security, compulsory internment of certain US Citizens and Aliens living in Continental United States and overseas possessions into designated military areas is LEGAL.
      Executive Order 9066, a decree issued by President Roosevelt is in fact a historical precedence for the ongoing immigration dilemma, and these types of actions carried out by the Executive Branch are non-reviewable by the courts.
      http://www.ourdocuments.gov/print_fr...ese+%281942%29
      Read also Korematsu v. United States, 323 U.S. 214 (1944): Supreme Court decision that upheld the conviction of Fred Korematsu—a son of Japanese immigrants who was born in Oakland, CA—for having violated an exclusion order requiring him to submit to forced relocation during World War II.
      http://caselaw.lp.findlaw.com/script...=323&invol=214
      It is important to note that President Gerald Ford rescinded Executive Order 9066 on February 19, 1976.

      In legal terms the United States of America is currently in a State of War: Authorization for Use of Military Force (AUMF) - Public Law 107-40
      http://www.gpo.gov/fdsys/pkg/PLAW-10...-107publ40.pdf

      Consequently, Mr. Rappaport's article is irrelevant and biased (for not saying sympathetic to Donald Trump's agenda)

      Nice try Sir.
    1. Stephen T Blower's Avatar
      Stephen T Blower -
      The gist of the article seems to be that a favorable exercise of discretion, even if unprecedented in scope, by one administration, immediately contemplates an abusive exercise of discretion in another, even to the extent that the lowest hanging fruit for ICE of undocumented childhood arrivals with deferred action granted should or could become the first, and certainly easiest, level of priority to carry out immediate orders of removal. That's the laziest example of enforcement the country would ever have experienced, and it is easy to imagine the level of civil disobedience and disruption this would ultimately cause in our society, not just on the part of advocates, but all the employers of these millions of young workers. And its [DACA's] purported goal in the first place was (apparently) to prompt Congress to draft a bill that would target such a sympathetic population, along with appropriate screening processes, not necessarily to press Constitutionality of executive power to its absolute limits. Speaking of which, the issue of its ultimate Constitutionality of the President's action is NOT settled yet--it is a case before the SCOTUS right now. Everyone is entitled to an opinion (informed by an understanding of the law or not) but that of the High Court is the only one that matters. Recall that the DREAM Act was itself killed previously, to great disappointment and almost certainly out of fierce opposition from the right. And sadly, rather than thinking of the plight and the situation of all the persons stepping forward to pay for their processing, the preference is simply to say, you had no right to that in the first place so we are nullifying it, as if they were complicit somehow in their decision to act upon the implementation of the program. Stupid undocumented kids! What were they ever thinking? Trust our government not to betray them down the road in exchange for their gullible willingness to believe the government when it asserts that it is a viable program? At least they got to take minimum or law wage jobs for a couple of years before a new administration potentially will terminate that so all those willing and able U.S. citizen workers clamoring for minimum wage slave jobs don't have to sit around collecting unemployment or welfare. [These last four sentences are obviously meant to be sarcastic]. It's a pretty said state of affairs when the focus of the President's expansive action is the fact it was done at all, not the spirit of the program or its ultimate successful results. And to address this perfidious notion that a lack of interviews is a great risk and discredit, the same was true for TPS applicants, with no great catastrophic reports of abuses. Congress has sanctioned the TPS program, so it obviously receives far less attention and fanfare, i.e. hullaballoo. The public's overall ignorance of immigration law and consequences of the meaning of unlawful presence, its effect on the undocumented, and the state of the current broken system all serve to bolster simplistic and impossible "solutions."
      If someone really wants to make an argument for inconsistency and an outdated and obsolete law, how about the 1966 Cuban adjustment Act where all a Cuban has to do, by whatever means, is set foot on U.S. soil and is immediately presumptively, without any of the rigors of that nuisance of a real asylum process, to be a qualified defector showered with government benefits--possibly the absolute opposite of the President's order. Create a benefit for a particular group, not particularly motivated by equitable treatment, but some grandstanding political statement by the U.S. government, as if the Cuban regime really cares if the U.S. is stupid enough not to enforce entry without inspection against all foreigners in a uniformly fair way, now even 50 years later.

      Stephen T Blower
      Immigration Attorney, Columbia, Missouri
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Stephen T Blower View Post
      The gist of the article seems to be that a favorable exercise of discretion, even if unprecedented in scope, by one administration, immediately contemplates an abusive exercise of discretion in another, even to the extent that the lowest hanging fruit for ICE of undocumented childhood arrivals with deferred action granted should or could become the first, and certainly easiest, level of priority to carry out immediate orders of removal. That's the laziest example of enforcement the country would ever have experienced, and it is easy to imagine the level of civil disobedience and disruption this would ultimately cause in our society, not just on the part of advocates, but all the employers of these millions of young workers. And its [DACA's] purported goal in the first place was (apparently) to prompt Congress to draft a bill that would target such a sympathetic population, along with appropriate screening processes, not necessarily to press Constitutionality of executive power to its absolute limits. Speaking of which, the issue of its ultimate Constitutionality of the President's action is NOT settled yet--it is a case before the SCOTUS right now. Everyone is entitled to an opinion (informed by an understanding of the law or not) but that of the High Court is the only one that matters. Recall that the DREAM Act was itself killed previously, to great disappointment and almost certainly out of fierce opposition from the right. And sadly, rather than thinking of the plight and the situation of all the persons stepping forward to pay for their processing, the preference is simply to say, you had no right to that in the first place so we are nullifying it, as if they were complicit somehow in their decision to act upon the implementation of the program. Stupid undocumented kids! What were they ever thinking? Trust our government not to betray them down the road in exchange for their gullible willingness to believe the government when it asserts that it is a viable program? At least they got to take minimum or law wage jobs for a couple of years before a new administration potentially will terminate that so all those willing and able U.S. citizen workers clamoring for minimum wage slave jobs don't have to sit around collecting unemployment or welfare. [These last four sentences are obviously meant to be sarcastic]. It's a pretty said state of affairs when the focus of the President's expansive action is the fact it was done at all, not the spirit of the program or its ultimate successful results. And to address this perfidious notion that a lack of interviews is a great risk and discredit, the same was true for TPS applicants, with no great catastrophic reports of abuses. Congress has sanctioned the TPS program, so it obviously receives far less attention and fanfare, i.e. hullaballoo. The public's overall ignorance of immigration law and consequences of the meaning of unlawful presence, its effect on the undocumented, and the state of the current broken system all serve to bolster simplistic and impossible "solutions."
      If someone really wants to make an argument for inconsistency and an outdated and obsolete law, how about the 1966 Cuban adjustment Act where all a Cuban has to do, by whatever means, is set foot on U.S. soil and is immediately presumptively, without any of the rigors of that nuisance of a real asylum process, to be a qualified defector showered with government benefits--possibly the absolute opposite of the President's order. Create a benefit for a particular group, not particularly motivated by equitable treatment, but some grandstanding political statement by the U.S. government, as if the Cuban regime really cares if the U.S. is stupid enough not to enforce entry without inspection against all foreigners in a uniformly fair way, now even 50 years later.

      Stephen T Blower
      Immigration Attorney, Columbia, Missouri
      TPS and the Cuban Adjustment Act were passed by Congress, that makes them different than DACA and DAPA. Deferred Action has been around since the 1950s (called non-priority until the 1970s). DACA violates almost every aspect of the deferred action agency regulations that existed before June 15, 2012. By the way, the Dream Act was included in President Bush's immigration proposal that was defeated because democrats refused to join the moderate republicans who sponsored it. President Obama could have passed the Dream Act during his first 2 years. He made no attempt to help immigrants until he could use the immigration issue to embarrass republicans.
    1. Stephen T Blower's Avatar
      Stephen T Blower -
      Quote Originally Posted by Retired INS View Post
      TPS and the Cuban Adjustment Act were passed by Congress, that makes them different than DACA and DAPA. Deferred Action has been around since the 1950s (called non-priority until the 1970s). DACA violates almost every aspect of the deferred action agency regulations that existed before June 15, 2012. By the way, the Dream Act was included in President Bush's immigration proposal that was defeated because democrats refused to join the moderate republicans who sponsored it. President Obama could have passed the Dream Act during his first 2 years. He made no attempt to help immigrants until he could use the immigration issue to embarrass republicans.
      The point of my references to TPS and the CAA was not to defend or even make a direct comparison to DACA or DAPA. It was, in the case of the former, to show how the TPS law as executed by legacy INS and USCIS eschewed the interview process, in direct response to the criticism that a lack of an interview process was one of DACA's great weaknesses. The TPS law as written by Congress neither mandates nor excuses an interview process--so what does that mean for agency discretion? I am simply pointing out that it is inconsistent to say that a lack of an interview process in itself is a flaw when that clearly isn't considered so in another comparable, albeit Congressionally written, availability of a benefit. I'm aware of the history of the failure of the DREAM Act but I would not characterize that history in the same politicized way. The point of the reference to CAA is to point out a Congressional "blind spot" and Congressional political selectivity when it comes to certain immigration issues. In other words, immigration benefits as written by Congress don't always arise out of moral or humane concerns. The flip side of this is, an outcry over the undocumented is, by Congressional sanctioning, shielded from Cubans, because once a Cuban violates the law against illegal entry, he or she is immune to the consequences facing every other nationality. Unless you also believe that the "wet foot/dry foot" policy also is an unconstitutional overreach by the Executive Branch. Well nobody is complaining about that. That might make sense to politicians, but I daresay the public would find it baffling. When you refer to "deferred action agency regulations that existed before June 15, 2012" are you pointing to something in the Code of Federal Regulations or the Federal Register, or just internal policy regulations that would ordinarily receive Chevron deference? And will opponents of DACA still claim it is unconstitutional even if SCOTUS says it isn't?
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Stephen T Blower View Post
      The point of my references to TPS and the CAA was not to defend or even make a direct comparison to DACA or DAPA. It was, in the case of the former, to show how the TPS law as executed by legacy INS and USCIS eschewed the interview process, in direct response to the criticism that a lack of an interview process was one of DACA's great weaknesses. The TPS law as written by Congress neither mandates nor excuses an interview process--so what does that mean for agency discretion? I am simply pointing out that it is inconsistent to say that a lack of an interview process in itself is a flaw when that clearly isn't considered so in another comparable, albeit Congressionally written, availability of a benefit. I'm aware of the history of the failure of the DREAM Act but I would not characterize that history in the same politicized way. The point of the reference to CAA is to point out a Congressional "blind spot" and Congressional political selectivity when it comes to certain immigration issues. In other words, immigration benefits as written by Congress don't always arise out of moral or humane concerns. The flip side of this is, an outcry over the undocumented is, by Congressional sanctioning, shielded from Cubans, because once a Cuban violates the law against illegal entry, he or she is immune to the consequences facing every other nationality. Unless you also believe that the "wet foot/dry foot" policy also is an unconstitutional overreach by the Executive Branch. Well nobody is complaining about that. That might make sense to politicians, but I daresay the public would find it baffling. When you refer to "deferred action agency regulations that existed before June 15, 2012" are you pointing to something in the Code of Federal Regulations or the Federal Register, or just internal policy regulations that would ordinarily receive Chevron deference? And will opponents of DACA still claim it is unconstitutional even if SCOTUS says it isn't?
      I understand and generally agree with you. However, I was part of the USCIS management review team that commented on the DACA proposal in July of 2010, nearly 2 years before the President announced it. I had been involved with deferred action cases for more than 30 years at the time. Deferred action was an internal policy from the 1950 until June of 2012. It required extensive interviews and a showing of hardship. The administration took a program intended for a small number of people and turned it upside down to fit a political goal. Even that might have been OK if it had been published in the Federal Register for public comment. From the 1950s until the John Lennon case in the 1970s, deferred action was printed on blue pages in our INS law books. That meant it was internal policy and not to be shared with the public. Lennon's attorney prevailed in federal court and got the past records of deferred action made public, approximately 1800 cases in a 20 years period. Afterwards the regulations were printed on white pages, moved to a different section of our law books, and made available to the public. I believe in the goal of DACA, but not in the way it was done. I will accept whatever decision the court makes on DAPA. I am not aware that DACA is being considered by the court since it was not challenged.
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