Obama’s Executive Action: The nuts and bolts of carrying it out

By Sheryl Hamlin

On November 20, 2014, President Obama gave an anticipated speech on immigration. He gave the speech and signed the immigration executive action in Nevada. The speech itself outlined conceptually what the President was proposing. The Department of Homeland Security provides an in depth view of the ten (10) areas of change to be implemented via ten (10) internal memos written from DHS head Jeh Johnson to those responsible for each area. The category ‘Review Parole Rules’ has three (3) unique memos, while Deferred Action for Childhood and Parents (areas 6 and 7 below) are covered by one memo and items 8 (entrepreneur) and 10, which affect business workers, are covered by a single memo.

The areas are as follows in order as presented on the DHS website:DHS.logo

  1. Strengthen Border Security
  2. Revise Removal Priorities
  3. End Secure Communities and Replace it with New Priority Enforcement Program
  4. Personnel Reform for ICE Officers
  5. Expand Deferred Action for Childhood Arrivals (DACA) Program
  6. Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents
  7. Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents
  8. Revise Parole Rules (entrepreneurs, military and advanced rules)
  9. Promote the Naturalization Process
  10. Support High-skilled Business and Workers

 

The area Strengthen Border Security was notably first in the speech and first in the DHS presentation on-line. The six recipients of this memo included Federal Energy Management Agency (FEMA), Immigrations and Customs Enforcement (ICE), US Coast Guard, US Customs and Border Protection and US Citizen and Immigration Service (USCIS), and Homeland Security (DHS). This memo covers only the southern border of the United States. Several notable facts presented in this memo were 1) illegal immigration peaked in the year 2000, 2) apprehensions are at the lowest rate since the 1970’s and 3) the population of “undocumented immigrants” has stopped growing. They estimate that the average residency in the United States of “undocumented immigrants” is thirteen years. They called out the aggressive action taken by the DHS in response to the massive influx of children in the summer of 2014 which abated the flow of such children.

There are three new task forces in Strengthen Border Security: “Joint Task Force East will be responsible for the Southern maritime border and approaches. Joint Task Force West will be responsible for the Southern land border and the West Coast. Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces.” There are ten objectives of these task forces with “minimize the risk of terrorism” at the top.

Revise Removal Priorities is subtitled “prosecutorial discretion” by stating “In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety, and border security.”   DHS is supposed to exercise discretion in deciding whom to apprehend, stop, detain, question, release, etc. as a function of national security. This memo rescinds and replaces five other memos signed by this administration on this topic. Priorities are ranked into three levels: Priority 1 (threats to national security, border security, and public safety), Priority 2 (misdemeanants and new immigration violators), Priority 3 (other immigration violations). Certain aliens who have been “issued a final removal order” on or after 1/1/2014 will be in Priority 3, if they do not represent a threat to national security. This memo is effective 1/5/2015. At such time, the Office of Immigration Statistics is being directed to collect data and analyze effects of these procedures. The memo ends with the following statement about individual rights: “These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter”.

The End Secure Communities memo is directed to US ICE, Office of Civil Rights and Civil Liberties and Office of Intergovernmental Affairs. Recognizing that the “Secure Communities” concept was problematic and unpopular, this new program PEP or “Priority Enforcement Program” will be instituted as follows: “ ICE should put in its place a program that will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies to the Federal Bureau of Investigation for criminal background checks.” However, ICE should only seek to transfer an “alien” if he is in one of the top two tiers of unlawful categories, as outlined in the Revise Removal Priorities memo or when ICE determines there is an imminent threat to national security. Requests for detention will become requests for notification, in order to stem the cases of supposed violations of Fourth Admendment rights. However, the PEP policy does not limit transfers from government agencies and states: “Nothing in this memorandum shall prevent ICE from seeking the transfer of an alien from a state or local law enforcement agency when ICE has otherwise determined that the alien is a priority under the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum and the state or locality agrees to cooperate with such transfer.” There will be an education campaign to make communities and businesses aware of these changes.

Personnel Reform for ICE Officers realigns pay structures and job definitions for ICE officers.

Deferred Action for Childhood and Deferred Action for Parents are covered under one memo for those children born in the United States and for those parents of such children essentially giving a form of prosecutorial discretion known as “deferred action” to such cases. Deferred action will be granted on a case-by-case basis, does not confer legal status, nor does not lead to a green card. DACA (Deferred) Action for Childhood Arrivals) has been pushed back to January 1, 2010. DACA originally had a cap of 31 years for “children” to apply. That cap is now removed. The current two year work extensions will be increased to three year extensions. USCIS should be accepting applications for these extensions within 90 days of this announcement. USICS should apply prosecutorial discretion for deferred action in the following cases: 1) have, on the date of this memorandum, a son or daughter who is a U.S.citizen or lawful permanent resident; 2)have continuously resided in the United States since before January 1, 2010; 3)are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS; 4) have no lawful status on the date of this memorandum; 5) are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and 6) present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.

The I-601A Provisional Waiver was designed to minimize the time that unlawful family members must wait for a visa to be reunited with a US citizen family member. It applies to spouses, children and parents. Under pre-2013 law, such family members must wait 3 to 6 years for a waiver and leave the country for a consular interview. In 2013, the law was amended to allow for interviews prior to the “unlawful ” spouses and children of US citizens leaving the country. The memo Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents modifies the 2013 change further by allowing the provisional waiver to apply to spouses and children of US citizens and “lawful permanent residents”. USCIS must determine cases of “extreme hardship” for family separation.

Revise Parole Rules relates first to workers and entrepreneurs. The first part of the memo directs the agencies to improve hiring of foreign talent where the visas are issued but not filled, improve the communication between the State Department and the business community and to make it easier for a foreign work to change jobs or employers. Current regulations allow students in STEM (Science, Technology, Engineering and Math) studies 29 months to stay in this county as an apprentice worker and other areas of study 12 months. This is called ‘optional practice training’ or OPT. The memo encourages ICE and USCIS to make stronger relations with degree-granting institutions to improve the OPT program. Scholars with advanced degrees in areas of national interest should be encouraged to apply for green cards without employer sponsorship. This could also include those entrepreneurs who have been granted substantial funding for a business which can be started in the United States. Note that such individuals will not be eligible for the benefits of the ACA (Affordable Care Act). Intracompany transfers of foreign workers will be clarified and simplified. Worker portability will be clarified and simplified for both employee and employer.

Parole Rules will also be updated “for certain spouses, children, and parents of individuals (US citizens) seeking to enlist in the U.S. Armed Forces” which is called ‘parole-in-place’. Parole-in-place will be expanded to family members of lawful residents and US citizens. Finally, “advanced parole” clarification will be made on those unlawfully domiciled aliens who leave the country for more than 180 days and wish to reenter, specifically how the ‘Arabally’ case applies to US law.

Promote the Naturalization Process involves USCIS taking credit cards, implementing certain waivers of fees and implementing a public awareness of citizenship.

The category Support High-skilled Business and Workers is covered by the same memo as parole rules for entrepreneurs (see above).

There are several sites where a full text of the speech can be read. The Washington Post produced a three-minute edited video of the speech which appears to have been pulled from their site.

_______________________________________

Sheryl Hamlin: With an MS in Industrial Engineering, Sheryl Hamlin spent years in technology with stints at Motorola, Tandem Computers and various startups. She has been on the boards of neighborhood organizations both in San Francisco and Palm Springs where planning issues were her specialty. She now resides in Santa Paula and loves the historic fabric of the city.

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Charles Muller

Citizens Journal is already getting into the nitty gritty of putting this all in place? But there’s only one small problem, as Columbo would say. It’s unconstitutional. Now, I know that Constitution is too much of a bother for mots folks, who says it’s old, obsolete, “a living document,” irrelevant, etc. but it IS the supreme law. If you don’t like it, change it, if you can.

It looks like we’re down to just the Republicans (gasp), Libertarians and the occasional Democrat patriot to save us. Wait, I see that we also have Sheriff Joe and Larry Klayman, who defy classification. These things I would probably never know if I didn’t occasionally read the Citizens Journal.

Citizen Reporter

So, Sheryl, we’re already down to the “nuts and bolts” of it, merrily implementing away?

The only problem with all this Sheryl, which you failed to note, is that it is blatantly unconstitutional and illegal. Yes, Obama cites precedents of other Presidents violating the law. He could even use himself as an example. If people got away with murder multiple times, does that inoculate them against prosecution for evermore? I think not.

It is also greatly at odds with past statements Obama has made, acknowledging that he didn’t have the authority to do what he is now attempting to perpetrate.

His speech was full of obvious lies and factual misstaments. He has NOT strengthened border security, as he said last night, nor has he deported more people anyone else. Also, in practice he has released many illegal immigrant felons from detention. We are feeling the effects of this locally right now,

The 5 million people affected as discussed in the talking points before the speech are likely more like 10 or 15 million.

The “temporary” deferments can be renewed indefinitely, so they’re not really temporary.