Playing at the Margins of the Temporary Restraining Order

By Dan Cadman on March 9, 2015

In prior blogs, I've talked about the lawsuit filed by 26 states against the administration alleging that its "executive actions" on immigration are unlawful and unconstitutional.

First, I discussed a temporary restraining order forbidding implementation of key portions that grant benefits to live and work in the United States. Then I spoke of the government's emergency motion to stay the TRO, and most recently I mentioned Rep. Luis Gutierrez's (D-Ill.) assertion that the administration was considering ways to pull an end-run around the TRO.

The media reports that the plaintiff states have complained to the presiding judge that, despite representations made by the Department of Justice (DOJ) in court that no actions have been taken to implement executive action, it turns out that about 100,000 aliens did, in fact, receive benefits extending their "lawful presence" and right to work for three years. DOJ says it's a misunderstanding, but given the White House's track record on immigration and Rep. Gutierrez's recent statements their credibility on this score is in the negative column. A hundred thousand people is a big misunderstanding.

One sure-fire way to figure out if White House officials have been playing at the margins of the TRO and doing their best to ignore it (even as they scramble to avoid a finding of contempt) is to dig into one of the lesser-known programs of the executive action package: The "Central American Minors" (CAM) program deals with setting up "refugee" centers in Central America. (Keep in mind that under the law, a "minor" is anyone up to the age of 18; they are not just toddlers and other children of tender age.)

First notice of the program was quietly, almost surreptitiously, announced by the Department of State (DOS) through a fact sheet put up on its website on November 14, 2014, a few days prior to the president's nationwide address on executive action. Next followed a Department of Health and Human Services (HHS) Office of Refugee Resettlement fact sheet published on January 30, 2015. The last drip of this trickle of information came from a Department of Homeland Security (DHS) bureau, U.S. Citizenship and Immigration Services (USCIS), which published its fact sheet on February 9 of this year.

Collectively these announcements could have benefited from a judicious use of Beano before being promulgated, because there's more than just a bit of wind in all of them. For instance, CAM purports to be a mechanism to permit children of parents illegally in the United States to be interviewed to see if they are entitled to status as refugees. The very premise of such a program has to be questioned.

  • If these minors are legitimately refugees, it seems likely that their parents would also have been likely candidates for asylum and should have applied once having entered the United States illegally. They didn't, or if they did, they were denied; else they wouldn't be here illegally and could petition within the boundaries of the law to bring in their children.

  • Then there's the nonsense about having the parents of these children sign "promissory notes" to pay back the federal government for transportation of the children. How do you enforce that against people who have no right to be here, work unlawfully, probably use fake documents to do so, and don't pay taxes?

  • There's also the assurance that the government will "only" reimburse parents for DNA testing once the familial relationship has been confirmed. Why should they be reimbursed at all, since they are the ones deriving the benefit?

  • Then there is all that lip gloss about only using parole on a "case-by-case basis". Those are weasel words designed to make us think that parole is exercised in the way required by law. But that isn't so. There is nothing lawful about using parole to circumvent the fair and proper working of the immigration system — which is to say that if you don't meet the criteria for refugee status, you shouldn't be admitted, rather than be rewarded by having your children allowed to come also (more DREAMers in the making, courtesy of your federal government).

  • Finally, in the first announcement by DOS, there's the statement, "It is anticipated that a relatively small number of children from Central America will be admitted to the United States as refugees in FY 2015." Parse those words carefully: The reason for the small number in 2015 is because federal fiscal years (FYs) begin in October of the year before. (FY 2015 began October 1, 2014). Undoubtedly, given the time to set up processing, etc., the statement is true on its face — few will show this fiscal year. But note also that DOS carefully omits predictions for FY 2016, which begins in October of this year, or beyond.

Viewed objectively, the whole program smells of a quid pro quo with the leaders of the countries whose citizens comprised the majority of the recent surge into south Texas. While the administration went to great pains to give the American people the impression it was dealing forcefully with those leaders (for instance by sending Vice President Biden to the region to "send a message", and then summoning them to the Oval Office to be sure they got the message), apparently behind the scenes the administration was buying its way out of the mess that it had engendered to begin with through ill-considered policies and pronouncements that resulted in the human tsunami.

Establishing these centers so quickly after the surge smacks of a way of placating the American public while buying off incompetent or venal Central American regimes unable to tackle the problems of grinding poverty and crime in their countries. So much for the "stern" approach to national leaders whose truculence in the face of the surge was well noted in media accounts. (See, for instance, here, here, and here.)

The states should find out whether DOS, HHS, and USCIS have been working diligently behind the scenes to conduct interviews and parole aliens into the United States under the auspices of the CAM program.

If processing, and possibly even paroles and admissions, have been ongoing and it is brought to the attention of the court, then almost certainly the administration will claim 1) the program isn't really part of executive action, it's just business as usual; 2) it's part of the president's foreign policy prerogative; and/or 3) even if it is one of the executive action programs, it shouldn't be covered by the TRO. That would be untrue:

  • There have been no refugee processing centers of any kind anywhere in Central America previously.

  • The concept of providing refugee status to individuals based on their relationship to illegal aliens already in the United States is unprecedented.

  • Granting parole as an "alternative" to individuals of any age who are ineligible for refugee status under the five grounds recognized by international and domestic law is a fundamental abuse of the parole process.

What is more, given that it is state and local governments who will be obliged to deal with this inflow, then the stresses and strains on their educational, health, police, and other social systems will be just as burdened as if there were a new surge of illegal border crossers; the administration will have simply "laundered" them through a new process designed to give the veneer of legitimacy. This, it seems to me, is exactly what the lawsuit is all about, and the court should examine the CAM program as carefully as it has the other executive action benefits programs.

But don't be surprised if this program has going on behind the scenes, and despite any restraining orders. I am the Great and Powerful Oz! Pay no attention to that man behind the curtain!