This is a story about how a rich and famous alien made a major impact on America's deportation policies, and how a prominent Marine general sought to unwrinkle part of the very wrinkled verbiage used in the immigration business.
The alien was John Lennon, the Beatle and British political activist; the Nixon administration tried to deport him for stirring up opposition to the war in Vietnam.
Lennon funded a long and ultimately successful battle to stay in the U.S. In the course of it, Lennon's immigration lawyer, Leon Wildes, uncovered a previously secretive administrative device sometimes used to waive deportation for clearly deportable people.
This mechanism, the "nonpriority" classification, was a non-deportation tool used by the old Immigration and Naturalization Service, and before Lennon came along it had been largely hidden within the INS instruction books. Wildes, according to an article he wrote in the February 17 issue of Immigration Daily, did extensive research on the "nonpriority" classification, and got his hands on 1,843 "nonpriority" cases, and analyzed them.
One of Wildes' several lawyerly strategies was to try to get INS to declare Lennon a nonpriority deportation case, and thus allow him to stay in the country. After a number of years he got INS to make that decision while, almost at the same time, persuading the Second Circuit that Lennon should not be excluded from the U.S. Lennon stayed in the U.S. until he was murdered in New York.
The nonpriority deportation classification is now known as either Deferred Departure or Deferred Action and is the administrative equivalent of the courts' Cancellation of Removal, once called Suspension of Deportation. What DD does is to keep an otherwise deportable alien legally in the nation, usually with the right to file for an employment authorization document.
DD is often discussed by mass migration advocates as a possible administrative remedy should a legislative legalization program prove to beyond reach, as it seems to be at the present. Ironically, any massive use of it (which I think would be a terrible idea) would largely benefit a low-income population, but its current very public presence in the debate is because a rich alien, in effect, brought the program out of the closet.
The government's position, then and now, according to Wildes, is that the practice is "merely an administrative tool, conferring no rights upon an alien." In other words the government can, at its discretion, indefinitely postpone an alien's deportation but no alien has a right to seek such a decision. Wildes wants it to be part of the regular immigration/deportation decision-making process.
Although Wildes does not make this analogy, the government's view of DD is like an absolute monarch's view of his own power to pardon his subject, something he can do at his whim, but something that a mere subject cannot even request.
Incidentally, Deferred Action or Deferred Departure is not to be confused with another DHS term, "Deferred Enforced Departure". The former is granted on a case-by-case basis to aliens from all other the world; the latter is described as follows: "Although DED is not a specific immigration status, individuals covered by DED are not subject to removal from the United States, usually for a designated period of time."
The quotation is from this USCIS document. At the moment DED only applies to some Liberians and is very much like Temporary Protected Status that has been used for many Central Americans, the main difference being that TPS is defined in statute while DED is an administrative artifact.
Enter the Marine general. He was the plain-speaking Leonard Chapman Jr., formerly Commandant of the Marine Corps, and Nixon's INS Commissioner. According to a footnote in Wildes' article, the term "nonpriority" classification in deportation cases was changed to "deferred action" "as a result of a directive by the [INS] commissioner, and solely because the term 'nonpriority' displeased him." Wildes does not name him in the article.
I think the late Gen. Chapman should have been mentioned by name, because anyone who makes the slightest movement in the direction of Better English In The Immigration Business is worthy of high praise.
Deferred Action, while not the best label for an administrative amnesty, is far preferable to nonpriority classification.