Government by Fiat: Granting Discretionary Waivers for Terrorism Supporters

By Dan Cadman, February 7, 2014

"When we say we will never forget, we mean what we say."

–President Barack Obama, speaking to New York firefighters and police at Ground Zero on May 5, 2011

I'm sitting at my desk with a sense of shock. I've just read an item with the headline, "Obama admin unilaterally changes law to allow immigrants with 'limited' terror contact into US".

The article says that the change has been published in the Federal Register, the official journal of the United States government. So, with a sense of disbelief, I check. Sure enough, there it is: a formal Notice in the Federal Register. Not, I want to emphasize, a draft regulation published for public comment, but a "notice" promulgated jointly by the secretaries of Homeland Security and State who assert that, prior to publishing this notice, they consulted with the Attorney General.

The "notice" announces to the American public that these three stalwarts of the executive branch – cabinet members and confidantes of the president – have agreed that it is in the public interest to exercise their discretion to grant waivers to aliens who have provided material support to terrorist groups.

Of course, the notice is sugar-coated with throw-away lines. It describes the notice as applying to "certain aliens who do not pose a national security or public safety risk from admission to the United States and from obtaining immigration benefits or other status."

Likewise, an unidentified DHS spokesman attempts to play down the impact: "These exemptions cover five kinds of limited material support that have adversely and unfairly affected refugees and asylum seekers with no tangible connection to terrorism: material support that was insignificant in amount or provided incidentally..."

It is also obfuscated with the kind of stultifying and vaguely obscure statutory references that are a mile long, virtually guaranteeing that most individuals either won't find them or, if they do, won't understand the stilted, back-and-forth cross-referencing language used, and ultimately will give up trying to figure it all out with a roll of the eyes.

Just to be clear, and contrary to the implications of the "unnamed" spokesman: this waiver gives such aliens the right to enter the United States, or to apply for any immigration benefit provided for under the law, including permanent resident status – not just asylum or refugee status – without fear of either being excluded or deported.

Attempting to minimize the importance of excluding people who have materially supported terrorism is outrageous, given the history of terrorist attacks and attempts that have taken place in this country in the past decade-plus.

The examples described by the spokesman just don't pass the straight-face test. I don't know of any immigration officer who, even in the absence of this notice, would have excluded an alien, or denied a benefit for "giving a bowl of rice" or "paying a bridge toll". Seriously, Mr. Spokesman, is that what you are reduced to, in order to justify this outrageous notice?

Let's take a look at those absurdly long alphabet-soup sections of law cited in the notice, and see what they really say, in juxtaposition to the waiver this notice provides for.

1. Stripped down, the waiver will apply to an alien who is part of "a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv)."

2. Now if you go to the subclauses mentioned, here are just a few highlights of the kind of activity they describe:

  • committing or inciting to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
  • preparing or planning a terrorist activity;
  • gathering information on potential targets for terrorist activity;
  • soliciting funds or other things of value for terrorist activity;
  • committing an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training for the commission of a terrorist activity.

Funny, I'm not seeing anything in that list which would make me want to see discretion applied to any alien under those circumstances. There is a difference between what the administration is claiming the waiver is intended to do, and what I am reading in the law, that is so wide and so deep that it's a chasm.

And then there is the question of whether the administration had the legal right to promulgate the notice. First, why was it not published as a preliminary notice with an opportunity for informed and interested persons to comment upon, and perhaps even alter, it? Second, if one considers the language used in the legal provision that provides for discretionary waivers – which is what the two secretaries are hanging their hats on to justify the notice – it appears clear that the intention was to see waivers applied on a case-by-case basis, after full consideration of all the facts and circumstances applying to each individual, not to whole swaths of aliens who have not yet even come before the government. Yes, taking a case-by-case approach will result in different decisions in different cases. The mere fact that different cases are decided differently is not evidence of disparate treatment. That is what applying discretion is all about. Some people simply don't merit its exercise.

And curiously, when it fits their purpose, administration apparatchiks readily acknowledge the importance of case-by-case determinations. In a Washington Times article focusing on the notice and its relevance to asylum and refugee cases, when reacting to a criticism that not enough arriving aliens are detained pending investigation of their claims, as required by the law, a DHS spokesman responded, that "it's been long-standing policy for U.S. Immigration and Customs Enforcement – the agency that handles detention – to make determinations on a case-by-case basis." Wow, go figure. They get the principle; they're just choosey about when they want to apply it.

Finally, there is the boots-on-the-ground impact of this notice. In practice, it will thoroughly muddy the waters and make it hard indeed for government examiners to deny an alien seeking a waiver of excludability for his terrorism support – and there will, indeed, be unsavory aliens who know that the U.S. government knows of them, but will test and push and engage in revisionist history to describe what they did, how they did it, and why, to be sure that they qualify.

This broad application of what was intended to be a narrow exemption opens a loophole wide enough to drive a double-wide tractor trailer through. It is an abuse of discretion – and of power – for the executive branch to attempt to use its statutory ability to occasionally grant a well-deserved waiver, and apply it in advance to a whole class of aliens whose cases, and circumstances, will inevitably differ radically from one to the next.

This is not the first time that the administration has used a ploy such as "notices" or policy memoranda to achieve what they cannot get the Congress to go along with in its constitutionally designated role as legislators. Where immigration law and policy are concerned, it's become not just a bad habit but a dependency.

So there you have it. Done deal; no need for comments or outsiders' views in this democracy, thank you very much. So this is what the president meant when he talked about "executive action" in his State of the Union address. Good to know the administration is going about the business of making the American public safer without having to mess around with all that nasty red tape or fool around with those obstreperous members of Congress who fight his agenda.

Sadly, in recent years our federal immigration benefits granting agency (USCIS) and its mother department (Homeland Security) have shown themselves to be either unwilling or incapable of distinguishing the pie from the patty. I have little doubt that the first time this explodes in someone's face (pardon the hopefully figurative use of the phrase), and a waiver proves with 20/20 hindsight to have been stunningly inappropriate, the savants who came up with this idea will scramble away, crab-like, from the resulting publicity nightmare, and blame it all on some goat of a bureaucrat who should have been smart enough to know that the waiver shouldn't have been applied in that case, as ought to have been evident to even the dullest of dullards.

Meanwhile, back to the president's remarks at Ground Zero in May of 2011: looks like you did forget, Mr. President.

How else to explain choosing to put the American people at risk when prudence dictates otherwise?