Amnesty: DHS Kelly Spotlighted DACA Legal Problem As He Ended DAPA


The administration’s announcement ending the so-called “DAPA” amnesty quietly cuts the legal legs off the still-operating “DACA” amnesty for younger illegals, despite left-wing claims that President Donald Trump has accepted former President Barack Obama’s DACA quasi-amnesty.

Amid the left-wing cheering, officials denied that Trump had accepted the DACA amnesty.

The “DAPA and DACA [amnesties] are two different programs … The fact that DACA was not rescinded by the same memo should not be interpreted as bearing any relevance on the long-term future of that program,” said a memo issued Friday by the Department of Homeland Security. The future of the DACA program continues to be under review with the Administration.”

The DAPA amnesty for roughly 4 million illegal-alien parents of U.S-born children has been frozen since early 2015 partly because a group of Governors persuaded multiple judges that Obama was telling deputies to defer prosecutorial action — deportation — against large numbers of people without conducting the case-by-case legal review required by the courts and Congress. 

That legal problem helps explains why “2012 DACA is just as unlawful as 2014 DAPA … and would fall if challenged,” said a statement from Dale Wilcox, the Executive Director and General Counsel for the Immigration Reform Law Institute, which advocates for “immigration policies that serve the national interest.” Roughly 765,000 younger illegals have received Social Security Numbers and work-permits from Obama’s DACA amnesty, which Trump has not stopped yet. 

In his June 15 statement announcing the end of DAPA, Department of Homeland Security Secretary John Kelly highlighted the lethal legal flaw in DACA when he said DAPA was indefensible in court and noted “I remind our officers that (1) deferred action, as an act of prosecutorial discretion, may only be granted on a case-by-case basis.”

The chief obstacle to a lawsuit which ends DACA is first persuading judges that state officials or individuals, such as legal immigrants, are clearly disadvantaged by the continued operation of the DACA amnesty, said one lawyer. Pro-American reformers are hoping a lawsuit will force DHS to end the program — and thus pressure Democrats to accept pro-American immigration reforms in exchange for a formal amnesty of the DACA beneficiaries. 

Some pro-American reformers are hoping a lawsuit will force DHS to end the program — and thus pressure Democrats in Congress to accept a package of pro-American immigration reforms in exchange for a formal congressional amnesty of the DACA beneficiaries. 

Both the DACA and DAPA amnesties are based on the unprecedented claim by President Barack Obama that agency officials have the authority to stop enforcing Congress’ laws against entire categories of people, providing the benefits were reviewed and granted on a case-by-case basis.

The 2014 DAPA amnesty, for example, told lower-level officials to defer enforcement of deportation law while accomplishing a case-by-case review of an entire class — illegal-alien parents of so-called “anchor babies” children born in the United States. The 2012 DACA amnesty was titled “Deferred Action Against Child Arrivals” because it told officials to stop enforcing immigration law against an entire class — illegals who were brought as children to the United States — while also granted the quasi-amnesty after conducting case-by-case reviews. 

But judges in the DAPA case noted there is little or no case-by-case review of amnesty awards to the beneficiaries in the DACA amnesty. A three-judge panel, for example, found in 2015 that then-DHS Secretary Jeh Johnson further instructed that:

Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were “merely pretext” because only about 5% of the 723,000 applications accepted for evaluation had been denied, and “[d]espite a request by the [district] [c]ourt, the [g]overnment’s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria . . . .”  The finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria.”

In a footnote to the November 2015 judgment, the judges also noted that Obama’s deputies at DHS could not cite any members of the class who were denied the benefit once they filled out the form correctly, saying:

USCIS could not produce any applications that satisfied all of the criteria but were refused deferred action by an exercise of discretion… (“[A]ll were denied for failure to meet the criteria or ‘rejected’ for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud.”).” Given that the government offered no evidence as to the bases for other denials, it was not error―clear or otherwise―for the district court to conclude that DHS issued DACA denials under mechanical formulae.

The Friday statement from DHS said that DAPA’s elimination does not mean that DACA is accepted or on safe legal ground:

The announcement made by the Department of Homeland Security on June 15, 2017 specifically referred to rescinding the memorandum signed on November 20, 2014 that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) which was never implemented.  The rescission only addressed DAPA based on the litigation posture and lack of a credible path forward in court.   

DAPA and DACA are two different programs.  Yesterday, based on litigation, the Administration decided to rescind DAPA.  The fact that DACA was not rescinded by the same memo should not be interpreted as bearing any relevance on the long-term future of that program.

The future of the DACA program continues to be under review with the Administration.  With regard to DACA, the President has remarked on the need to handle the issue with compassion and with heart.  Secretary Kelly recognizes that Congress is the only entity that can provide a legislate a long-term solution to this issue.

In his letter announcing the end of DAPA, Kelly also hinted that DACA could share the same fate as DAPA, saying “I remind our officers that (1) deferred action, as an act of prosecutorial discretion, may only be granted on a case-by-case basis, and (2) such a grant may be terminated at any time at the agency’s discretion.”

Liberal pro-immigration groups recognize that DACA is not on safe grounds.

For example, the ACLU cautiously celebrated the Kelly decision before warning supporters about Trump’s pro-American immigration policies, saying:

The Trump administration said the Deferred Action for Childhood Arrivals (DACA) program, which allows hundreds of thousands of undocumented youth to live and work legally in the U.S., remains in effect.

Lorella Praeli, director of immigration policy and campaigns at the American Civil Liberties Union, had this reaction:

“The only certainty in Trump’s America is uncertainty – and no memoranda changes that. They’re trying to distract us with their back-and-forth on DACA as their mass deportation machine proceeds full speed ahead.”

 



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June 16th, 2017 by
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