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The "Leaked" Mayorkas Memo - Another View

by Roger Algase

The leaked "Mayorkas Memo" is actually a set of "administrative relief options", as opposed to actual recommendations, presented to USCIS Director Alejandro Mayorkas from four top USCIS officials (including, significantly, the much criticized Donald Neufeld). The memo comes with a disclaimer to the effect that the proposals are options only, which may not necessarily be adopted by the agency. The fact that the memo was leaked, something that is usually far from accidental in Washington, may indicate that it was meant as a trial balloon only, with every expectation that it might be shot down.

There is nothing radical about any of the proposals in the memo, whether they deal with legal or illegal immigration. To the contrary, these proposals are incremental in nature, based to simple fairness and common sense. For example, extending the obviously inadequate 10-day grace period at the end of H-1B and other categories of work authorization would be the least that USCIS could do, given the fact that many foreign workers holding these visas have homes, leases and other assets that cannot be disposed of so quickly.

Many also have families, children in school, etc. These workers have, at least temporarily, given up career opportunities elsewhere in order to contribute to our economy and society. Branding them as "illegal" so soon after their authorized employment ends (or immediately, without any grace period at all if they are laid off), makes sense only to the most spiteful and vindictive among us.

The same applies to the other proposals in the memo, whether expanding the doctrine of "dual intent" to make foreign travel easier, or relaxing the requirements for waivers of the bars for "unlawful presence" (which, for some incomprehensible reason, was made the operative term in Arizona's immigration law, rather than something "easier" for an untrained Arizona sheriff who knows nothing about immigration law but is an expert at telling if someone is Mexican or has Mexican ancestry, to understand.)

On the illegal immigration side, it would be hard for any person of good will to argue against enforcement efforts focusing on the people who are the greatest danger to this country, namely violent criminals, drug dealers and suspected terrorists, rather than people who are benefiting America, such as students at Harvard or anywhere else who may happen to have been brought to this country illegally by their parents as young children, without any fault of their own.

Even the most vehement anti-immigrant advocates admit that the US does not have, and will never have, the resources to deport 11 million people here illegally. There has to be some process for deciding which of the few hundred thousand people each year unlucky enough to get caught in the deportation net should go home. What is wrong with going after those who least deserve to stay here, rather than leaving everything up to "random selection"?

There is also a very strong case for making badly needed changes in the system by administrative action, rather than by legislation. The main reason, of course, is that in the current immigration climate, there is no reason to believe that Congressional consensus will arrive any sooner than Godot does in Samuel Beckett's classic play.

It is also frequently overlooked that even if there were Congressional agreement, it might not necessarily be to the benefit of advocates of more liberal immigration. It is easy to forget that, after a whole series of Republican amendments had been adopted, the defeated 2007 Kennedy-McCain Senate bill would have drastically cut family immigration and virtually eliminated the entire employment-based green card system, to replace it with an elitist point system making it difficult, if not impossible, to get a green card without a master degree in science or technology and advanced knowledge of English. We all know what that would have meant.

After having actually read the 2007 bill, this writer was on the phone with the offices of at least a few pro -immigration Senators (including Senator Obama), almost screaming at their staff to ask their bosses to vote against the bill. Fortunately, someone with more clout, namely Lou Dobbs, was also around to save the day.

The Mayorkas memo also underscores the importance of maintaining federal administrative discretion over immigration, in contrast to the approach of the Arizona law, which would completely eliminate the role of discretion in setting enforcement goals or immigration policy in general. This makes the argument that Arizona is only "tracking" federal law utterly absurd.

By trying to take away the discretion not to go after someone who may be in violation of the law but has what used to be called other "equities" in his favor (a concept, by the way, that is almost as old as English common law itself) Arizona is trying to nullify, not enforce, the federal immigration laws.

The rage with which the Mayorkas memo is being greeted by immigration opponents is as irrational as it is predictable. The comparison that comes to mind is with Emmanuel Goldstein, the imaginary nemesis of the "Inner Party" totalitarian rulers in George Orwell's famous novel "1984", who is greeted every morning with the "Two Minutes Hate" ritual. But, as pointed out by Greg Siskind in his comment about why CIR is dead (August 2 ID), how can we expect anything rational from politicians who are now trying to change the Constitution to take away America's most cherished concept of birthright citizenship from millions of children who have committed no crime except being born to Hispanic or Asian parents?

Right wing extremists (and what other right wingers are there in America these days?) are already calling the Mayorkas memo "Obama's amnesty", just they were warning about the "death panels" under "Obamacare" not long ago. But there is not even the slightest whiff of "amnesty" in this memo, only sanity. Unfortunately, that quality is missing in action in the right wing campaign of hatred and intimidation against not only illegal immigrants, but all Hispanics and many other minorities in America.

Hatred of immigrants in America looks as if it will be around for a lot longer than two minutes. If the White House has the courage to adopt the Mayorkas memo, or most of it, as actual policy, not just a trial balloon, it will be making a powerful statement that the era of anti-immigrant hate in America is starting to come to an end. Whether a president who has so far tried to meet hatred half way will have the guts to take a firm stand against it, in the same way that Lyndon Johnson did during the civil rights era, remains to be seen. The fate of the Mayorkas memo will be a good indicator.

About The Author

Roger Algase, Esq. is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.