2010 DHS Draft Memo on Admin Amnesty Raises Questions

By Jon Feere, September 1, 2011

Since the Obama administration remains quiet about the details of its non-legislative amnesty, the public's best sources of information are draft memos leaked over the past year as the administration contemplated the best method for "sidestepping" the legislative process. A previous blog post covered a draft memo from DHS which called the measure a "non-legislative amnesty" that is "controversial, not to mention expensive."

A memo from February 26, 2010, is worth reading for those interested in seeing how the administration got to the point it's at today. The memo was first leaked by The American Spectator, and it's available online in PDF format.

Controversial Use of Deferred Action

According to the memo, DHS "envisioned legislation" establishing a two-phase legalization process for the nation's entire illegal immigrant population. DHS viewed the first phase as requiring "eligible applicants" to be "registered, fingerprinted, screened and considered for an interim status that allows them to work in the U.S." The second phase would allow aliens who fulfilled additional statutory requirements to become lawful permanent residents.

DHS felt that even without legislation, "much of Phase 1… could still be implemented, either by the Secretary of Homeland Security granting eligible applicants deferred action status or the President granting deferred enforced departure." Use of deferred action in such a manner is controversial, as DHS acknowledged in a different memo, and also here, in a footnote, explaining that deferred action decisions are generally made on a case-by-case basis. The same footnote points to the fact that DHS has "periodically decided to grant deferred action to discrete classes of aliens, including victims of trafficking and certain other serious crimes." Never has DHS used the program to benefit all illegal aliens in one fell swoop, however.

DHS admits that this is controversial, noting that "a program that reaches the entire [illegal alien population] would represent use of deferred action on a scale far beyond its limited class-based uses in the past (e.g. for widows). Congress may react by amending the statute to bar or greatly trim back on deferred action authority, blocking its use even for its high important uses in limited cases." DHS also explains that Congress "could also simply negate the grant of deferred action (which by its nature is temporary and revocable) to this population. If criticism about the legitimacy of the program gain [sic] traction, many supporters of legalization may find it hard to vote against such a bill." We may see this play out as Rep. Lamar Smith's HALT Act (Hinder the Administration's Legalization Temptation Act, H.R. 2497) advances.

DHS understands that the White House would be stepping on the toes of the Legislative Branch, explaining, "Even many who have supported a legislated legalization program may question the legitimacy of trying to accomplish the same end via administrative action, particularly after five years in which the two parties have treated this as a matter to be decided by Congress."

Some language was given a strikethrough in this draft, but it's interesting nonetheless: "Unilateral action by the Administration could be viewed as an end run around Congress, angering both Republicans and Democrats." And, "Congress may disagree with the deferred action policy and seek to undermine it through legislation or by using its appropriations authority to prohibit the expenditure of funds on such a program."

Registering Aliens, Economic Necessity Requirement, and E-Verify

The 2010 memo further explained that illegal aliens would have to register in exchange for work authorization. But DHS notes that under federal law, "aliens granted deferred action status must establish an economic necessity to obtain work authorization. 8 C.F.R. § 274a 12(c)(14)." In establishing "economic necessity," Congress directs immigration officials to "Title 45 – Public Welfare, Poverty Guidelines, 45 CFR 1060.2" and requires the alien to submit an application for employment authorization listing his assets, income, and expenses as evidence of his or her economic need to work. Any grant may be revoked upon a showing that the information contained in the statement was not true and correct.

Interestingly, DHS notes that illegal aliens "would have a strong incentive to register if this can be implemented simultaneously with an expanded E-Verify program that would substantially curtail opportunities for unauthorized employment." Thus far, the Obama administration has said nothing about E-Verify when pushing the non-legislative amnesty. That may be because, as DHS explained in the memo, illegal aliens "may be skeptical of registering because deferred action status is subject to revocation if there is a policy change, and it does not readily lead to LPR or another more secure status." In other words, if a new White House administration ends the program, and the aliens don't have permanent residency, the new administration will have the names and addresses of all illegal aliens who applied for the program, making it easy to locate them for the purpose of deportation.

Still, DHS explains that any administrative amnesty "would likely need to be proposed in conjunction with either administrative or legislative enforcement measures." The memo continues:

Expansion and improvement of the E-Verify program are the enforcement-related measures that would give us the most political space to propose significant benefits related administrative changes. Without legislation, DHS cannot make employer participation in this program mandatory. However, the Department can undertake certain initiatives to significantly encourage more employers to use E-Verify, address implementation problems, and identify other improvements to the program.

The media should inquire about why the White House has not initiated any discussion of E-Verify as the administrative amnesty moves forward.

Amnesty Will Increase Illegal Immigration

The DHS memo recognizes the problem of initiating an administrative amnesty with weak, porous borders, noting that the policy would increase illegal immigration. DHS explains: "Registration would need to be completed quickly, in order to reduce incentives for individuals to enter the U.S. unlawfully in the hope of applying for the program." Obviously, the administration's management of the amnesty indicates that Obama hasn't given this concern much thought. Apparently the administration doesn't see a problem with increased illegal immigration.

The oft-failed DREAM Act required applicants to prove that they entered the United States during a specific period of time so that such a scenario might be avoided. Despite DHS's concerns, there is no evidence that the administrative amnesty has any such perimeters. Perhaps the White House press corps could inquire about this issue.

Sidestepping the Will of the People, Costs

The memo also noted that an "operationally feasible application process" would require "up-front funding" from Congress and "sufficient time to ramp-up" the program. Thus far, there hasn't been either. Perhaps the administration hasn't asked for funding because, as DHS explains, such a request could "provide an opportunity for Congress to block this initiative if it objects." The White House clearly wants no input from representatives of the American people. The memo straightforwardly explains that an administrative amnesty is an effort to "transform the political landscape by using administrative measures to sidestep the current state of Congressional gridlock and inertia." Put another way, this is an attempt by the White House to break free from basic constitutional restraints on executive power and advance a policy that the American people have previously, and repeatedly, said 'no' to through their elected representatives.

The memo also proposes fees collected from applicants as a means to fund the program. Thus far, the administration has not suggested any fees will be required. There remains no evidence that the White House has contemplated the costs of the program.

Conclusion

DHS concluded that an administrative amnesty could "provide the Administration with a clear-cut political win," but notes that if the White House loses control of the message "an aggressive administrative proposal carries significant political risk." DHS also suggested that the plan be "carefully timed" and advanced only when "it was evident that no legislative action on CIR was possible in the current Congress." DHS proposed action in "late summer or fall — when the midterm election season is in full-swing." The White House decided to wait a year and announce the plan when Congress was in recess and Obama was on vacation. DHS states that the administration "would have to boldly drive the narrative" but at the time of the announcement, the only thing Obama was driving was a golf cart; a three-paragraph blog on the White House website remains the only effort, two weeks since the plan was announced.

In 2007, the U.S. Citizenship and Immigration Services ombudsman explained that "USCIS does not maintain statistics or otherwise track the number of requests received and approved or denied for deferred action" and that the agency can "only estimate the number of requests and provide anecdotal information on the types of requests received and granted or denied." The ombudsman stated that such sparse record-keeping may be justifiable because of the fact that "deferred action is extraordinary relief not based in statute or regulations," but nevertheless recommended better data collection. Now that deferred action has become standard practice for millions of illegal aliens, an inquiry into the status of agency's record-keeping abilities would seem justified.

Unfortunately, the largely uninquisitive media hasn't asked administrative officials about the scope of the administrative amnesty or its cost. Most journalists haven't investigated whether the White House has the constitutional authority to invoke such a policy, nor has there been much discussion of how the president can justify granting worker authorization to millions of illegal aliens at a time when millions of legal residents are looking for jobs. There remain many unasked and unanswered questions on this highly controversial move by the White House.