Administration Files an Emergency Motion to Lift the Restraining Order on Executive Action

By Dan Cadman on February 25, 2015

Last week a federal district court in Texas issued an injunction enjoining the administration from initiating key portions of the president's "executive actions" on immigration

The U.S. Justice Department has now filed a request with the court on behalf of the administration, seeking an emergency stay of the injunction pending review by the federal Fifth Circuit Court of Appeals, and a sad piece of work it is.

In some ways, what is perhaps most interesting about the motion is what the government has chosen to be silent on: the displacement of U.S. workers by millions of formerly illegal aliens now "lawfully present", each of them holding a newly minted work authorization documents. The government's silence on that score is deafening, and it's clearly because they recognize the peril in even attempting to address that issue.

As to what it does contain, there appear to be two separate but interrelated prongs to the dressed-up illogic found in the government's motion:

  1. The administration asserts that the American people will be harmed if the Department of Homeland Security (DHS) and its immigration-related components aren't permitted to give away benefits that would provide alien registration and work authorization documents to millions of aliens unlawfully in the United States, because public safety and national security will suffer; and

  2. The administration also claims that by bringing all these aliens forward and documenting them, public safety and national security are actually enhanced. Although cloaked in different language, this appears to be a variant on the "out of the shadows" argument made by advocates of mass amnesty — you know, the one that Congress didn't pass, that the American public doesn't seem to want, and which the administration claims that it isn't implementing administratively with its executive actions.

In pursuing the tenuous logic involved in these two arguments, the government has introduced two declarations as Exhibits A and B to its motion. One is by Sarah Saldaña, recently appointed head of Immigration and Customs Enforcement (ICE); the other is by R. Gil Kerlikowske, head of Customs and Border Protection (CBP), which includes the Border Patrol.

In her declaration, Saldaña asserts, among other things:

15. Enjoining the policies would prevent ICE from benefitting from the efficiencies that such policies are intended to create. For instance, when state and local law enforcement agencies encounter an alien who has received deferred action under the policies, ICE personnel would be able to quickly confirm the alien's identity through a biometric match. This is because USCIS collects fingerprints and conducts background checks for DACA and DAPA requestors. The availability of such information allows ICE to more efficiently work with our law enforcement partners to promote public safety.

16. Similarly, when ICE officers are engaged in at-large enforcement operations such as to locate criminal and fugitive alien targets, they often encounter non-target aliens who may also be removable from the United States. If such aliens have received deferred action under these guidelines and have documentary proof of this on their persons, ICE officers would be able to ascertain more quickly whether enforcement resources should be expended to detain and initiate removal proceedings against the individuals. This would also allow ICE to further focus its resources on priority aliens. (Affidavit of Sarah Saldaña, Exhibit A at pp. 6, 7, Defendant's Emergency Expedited Motion to Stay the Court's February 16, 2015, Order Pending Appeal and Supporting Memorandum.)

Similarly, Kerlikowske states:

7. When a Border Patrol Agent at a checkpoint or other location encounters an individual whose lawful status is not apparent after initial questioning, that alien is taken to the nearest location where the Agent can more fully question and process the alien. During processing, an alien's biographic information and biometrics (i.e., fingerprints) are collected. Record checks are run through CBP and other law enforcement systems. Agents review all of the pertinent facts and circumstances to determine whether or not the alien is a priority for removal, consistent with Secretary Johnson's memorandum of November 20, 2014, "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants", including whether the alien poses a threat to national security, border security (including those who recently unlawfully entered the United States), or public safety. Processing individuals (which includes questioning the individuals, collecting biographic and biometric information, and conducting background checks) takes Border Patrol Agent time that could otherwise be spent at the checkpoint or on other enforcement duties. Affidavit of R. Gil Kerlikowske, Exhibit B at p. 3, Defendant's Emergency Expedited Motion to Stay the Court's February 16, 2015 Order Pending Appeal and Supporting Memorandum.

There are so many things wrong with the thinking inherent in this "out of the shadows and now documented" proposition that one hardly knows where to begin. Here are just a few of the flaws in the arguments:

First, let's be clear that when an alien comes forward to be documented under the government's process, it is to a large extent a "scout's honor" self-attestation of his identity. He can claim not to have any birth certificate, cedula (national identity card), matricula consular (consular identity card), or passport to prove who he is, and our government will allow him to submit an affidavit instead. Thus, he can become whoever he wishes to claim to be.

Then there is the fact that if he provides secondary documentation (rent receipts, work paystubs, or the like) in lieu of official forms and documents, there's an even-steven chance that what he provides might be false — our country is awash in a sea of phony documents, and aliens are no strangers to identity assumption, swapping, and theft.

Finally, even when an alien provides a matricula provided by the consular officials of his country who are stationed in the United States, there is no assurance that they were obtained legitimately. By way of example, Honduras recently declared all of its consular identity cards issued in the United States to be invalid because of large-scale corruption in its consular offices. That isn't the first time such a thing has happened.

So when the government initiates its giveaway program, it will to a large extent simply be cementing into its biographic and biometric systems whatever identity is in the "breeder" documents that aliens bring forward to make their claim for executive action benefits. None of this necessarily represents reality, where identities are concerned.

And even in the best of times, there won't be much scrutiny of such documents — U.S. Citizenship and Immigration Services (USCIS), the DHS agency charged with administering immigration benefits, rarely conducts in-person interviews; most of the work is off-loaded into massive processing centers that operate efficiently, but without much personal interaction. This also lends itself to a great amount of fraud, which is endemic to virtually all immigration benefits programs.

Even assuming that the identity provided by an alien is true and correct, leading in turn to registry in DHS biographic and biometric systems and production of a card permitting the illegal alien to live, work, and even leave and return to the United States without penalty, only fools would assume that this means they are not threats to the homeland, because there have been continuing systemic failures in the government's vetting mechanisms. The most cursory review of the national security and terrorism cases presented for criminal prosecution in the last several years reveals a rogue's gallery of naturalized citizens, resident aliens, refugees, and asylees. The Boston Marathon bombers come immediately to mind, of course, but there are many, many (literally dozens of) others.

The assertions by Ms. Saldaña and Mr. Kerlikowske as to the time and resource efficiencies saved because agents can simply take a look at a government-produced executive amnesty card, presume all is well, and let the alien go without further ado, are beyond absurd. Under this administration, many so-called "law enforcement partners" (including the Seattle Police Department that Mr. Kerlikowske at one time led) steadfastly refuse in any way to cooperate with federal immigration enforcement efforts — a situation in which the administration has colluded to make worse, at the expense of the efficient enforcement practices it purports to want to advance.

As a result, it cannot be assumed that an alien possessing such a card isn't a public safety risk and hasn't been arrested for serious crimes. It may simply be that the jurisdiction where this occurred has sanctuary policies in place that prevent police from advising the local ICE or Border Patrol field office. Any prudent ICE or Border Patrol Agent knows this, and is going to take the extra time that Saldaña and Kerlikowske claim can be dispensed with, in order to run national criminal history checks through the FBI and other databases to see exactly who is standing in front of them.

So how the extraordinary largesse that executive action represents is a benefit to public safety is beyond a puzzle; it is inherently oxymoronic. Which brings us back to the first point — that the American people will be irreparably harmed because public safety will suffer if the administration isn't given free rein to do as it wishes notwithstanding the complete lack of a statutory basis for its acts.

In its motion, the government says, "Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department's comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources."

Under the guise of setting priorities, the administration has, in fact, effectively dismantled enforcement — most especially within the interior of the United States, where the great majority of the 11-12 million illegal aliens live. It has:

  • Permitted sanctuary laws and policies to flourish at the state and local level, even while providing those sanctuaries taxpayer money to offset the burden of alien crime;

  • Abandoned its "law enforcement partners" to predatory lawsuits intended to drive cooperative police and sheriff's departments away from assisting ICE and the Border Patrol;

  • Terminated cross-designation agreements in which state and local agencies actively cooperate in immigration enforcement efforts to detect and deter criminals and smugglers;

  • Ended the biometric Secure Communities program that was highly effective at identifying alien criminals at the first juncture of their interaction with police, and abandoned detainers as a tool to ensure criminals do not get released to the streets to reoffend;

  • Released alien criminals (including murderers and sex offenders) by the thousands after temporarily detaining them; and

  • So eviscerated ICE operations that, even without executive action to grant registration documents and work permits, in 2014 only 143,000 aliens out of the 585,000 aliens encountered by agents (less than one in every four) were put into removal proceedings.

Given the emphasis placed in each of the declarations on the importance of using biometric systems to give aliens registration and work documents, the DHS secretary's decision to end Secure Communities (as a part of the executive actions) is particularly ironic, since it was use of biometrics that made the program so effective at identifying and catching alien criminals — which is purportedly the underlying rationale for the administration's priorities.

But that alleged aim should be questioned closely: overall, deportations resulting from ICE apprehensions in the interior are down 58 percent between the federal fiscal years 2009–2014 and, more critically, deportations of alien criminals declined by 43 percent between 2012–2014, from 153,000 to 87,000.

In light of all the above, the claims made, under penalty of perjury, by Ms. Saldaña and Mr. Kerlikowske in their declarations beggar belief. They are also profoundly silly, because in their insistence that only by granting these aliens registration and work documents, these political appointees are implying that ICE and Border Patrol Agents — their employees — are too stupid to be able to separate the wheat from the chaff in terms of priority versus non-priority cases, without seeing such documents in an alien's hand. That's a pretty scary thought for the safety of the country, isn't it?

So exactly what have these agents been doing for the past several decades, before these new administrative programs were dreamed up? Seems like they got along with the business of doing their duties just fine; in fact, they did them better before this administration came along.

Considered dispassionately, one wonders how much expertise the two heads of CBP and ICE have between them. Should the views they urge in their declarations be accorded any deference whatever by the court in arriving at the position the government urges — lifting the restraining order so that executive amnesty can go forward? They are, after all, appointees of the president — the political equivalent of dilettantes having little prior substantive experience with the detailed knowledge so necessary to make informed statements about the long-term effects of executive action on federal immigration enforcement policies. To the extent that they have knowledge in the immigration field, it is vicarious and derived from the men and women who work for them, and who have developed their hard-won knowledge shaped over the course of many years of experience throughout different political administrations.

Instead of investing much weight in Exhibits A or B, the court would do well to exercise its prerogatives under Rule 24 of the Federal Rules of Civil Procedure, and invite amicus briefs from those who are best poised to provide honest, politically unbiased views with, collectively, hundreds of years of experience, knowledge, and wisdom: the ICE and Border Patrol agents unions. It would be most interesting to see whether they share the views of their bosses. There is ample reason to think they would not.