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Obama's New Immigration Initiative: "Slight Of Hand"

by Dan Vara

In the latest of what appear to be a series of illusory promises to the people of this country designed to get him into or keep him in office, President Obama has issued an Executive Order providing for temporary relief from deportation/removal for certain younger foreign nationals present in the U.S. illegally.

The Order, which has been widely publicized, has been touted by some as the equivalent of a Godsend and, as was obviously intended, as a clear signal from the administration that "it cares" about, in particular, Hispanics.

What is not being equally publicized is what the Order actually means to the targeted group and why, contrary to the preliminary reaction, most of them should not celebrate too much and too soon.

In 1986, when the Immigration Reform and Control Act (IRCA), or as commonly known the "Amnesty" law, was passed, I was an entry level trial attorney with the former Immigration and Naturalization Service (INS) in Dallas, Texas.

What I saw then in regard to implementation and impact of the then new law will, in my opinion, likely be mirrored in what will be seen in the implementation of the current Executive Order.

Like was experienced in 1986, most of the initial impact will be seen only internally. However, as the implementation continues, the overall impact of the Order on those it is supposed to help and the overall administration of this country's immigration laws should become apparent to almost everyone.

It will not be pretty.

If history does repeat itself, at some point, it is likely that the public will realize or otherwise learn that this country's first line immigration prosecutors have been ordered to proceed with all pending cases involving qualified Executive Order beneficiaries and obtain a final order of deportation/removal.

Why would this be the case? Because, the administration will want it both ways. Consistent with the much touted enforcement numbers that, at least in number, are claimed to be superior to the prior administration's efforts, the White House will see that this is an opportunity to "grant a benefit" at no real cost to the effort. Instead, with what might perhaps be regarded as a dirty little in-house secret, it will want to complete its current prosecution efforts and have the final orders ready for execution "as appropriate."

Remember, no one who benefits from Obama's Executive Order on immigration gets anything except a temporary pass. One that leads to nowhere in terms of real immigration status or protection.

What this means is that whenever and for whatever reason it deems appropriate, such as a rescission of the Executive Order, the prosecution effort will not have to start over, the 30-day appeal period will have expired for all such cases, and there will be no legal impediment to the actual deportation of any of the designated beneficiaries.

So when the men and women of Immigration and Customs Enforcement's Detention and Removal operations get the order to suit up, it won't be to pick people up for proceedings. It will be to fill up the buses and airplanes destined for, in large part, south of the border.

If history repeats itself, at some point, it is likely that the public will also realize or otherwise learn that the overall implementation of the Executive Order was not very well thought out.

For instance, it is almost guaranteed that the U.S. Citizenship and Immigration Services (USCIS), the branch of the Department of Homeland Security that deals with immigration applications, petitions and benefits, has not and will not receive additional personnel or monetary resources to deal with the influx of what has to be categorized as a likely avalanche of Employment Authorization Document (EAD), otherwise known as work permits, applications.

What that means is that USCIS will either have to work on the new EAD applications, or that it will continue to work on the other applications that everyone else who is eligible for such things as family or employer-based lawful permanent resident status, or for citizenship, has submitted.

No one, not the Executive Order applicants, not the pending case applicants and their U.S. citizen family members or employers, and certainly not the fine men and women of the USCIS, are likely to be very happy with the result.

If history repeats itself, at some point, it is likely that the public will also realize or otherwise learn that the Executive Order actually encouraged illegal immigration.

It will do so, like IRCA did, because of the nature of the beast. As everyone who pays attention to such things knows, there is a human propensity for some to always seek to take improper and even unlawful advantage of anything that can be turned into a self-benefit. Immigration benefits offer no less incentive for such people.

What is different here, however and at least so far, is that there may be a real problem in catching up with those who seek to gain by fraud. Here, unlike the application process required by the 1986 law, there is no formal application for the benefit. That may thus mean that USCIS may not be able to vet an EAD applicant by requiring them to appear for fingerprints at their local Application Support Center (ASC), since an EAD application is not one which requires the candidate to appear for fingerprints (see, "forms", "I-765").

Without fingerprints, there is no FBI background check. And without an FBI background check, USCIS and DHS will just have to take an applicant's word on the issue of who he or she is.

And finally, since there simply are too many other things to address in one article, if history repeats itself, at some point, it is likely that the public will also realize or otherwise learn that unlike the 1986 law, this Executive Order will separate families, in the end, not be the relief that many thought it would be, and, unless there is a sea change in the way things are done, may prove to be a "gift" with very harsh consequences for those who seek to receive it.

Unlike the 1986 law, which allowed anyone who met certain qualifying criteria to apply and be considered for relief from deportation, Obama's Executive Order only allows a qualifying "young person" to seek the benefit.

But, how does one do that? By contacting the Department of Homeland Security and letting them know, in pertinent part, that they exist, who they are, who their parents are, that their parents brought them to the U.S. illegally, and that the applicant is still here. Illegally.

Most importantly, the applicant has to let DHS know where they are and where they live. Otherwise, how can DHS "register" the applicant as an Executive Order beneficiary, and how can they get that person's EAD card to them?

What that means, of course, is that an applicant who does all these things is also likely, because he or she is a "young person" who lives with his or her parents based on necessity, going to be telling DHS where his parents are, where they live, and leading immigration authorities right to everyone else in the household who, because of the noted circumstances, is likely going to also be an illegal.

If the applicant is lucky, mom and dad and all other non-qualifying siblings have gone back to the home country and left him or her "home alone."

But that, for obvious reasons, is not likely. Especially if the young person is a recent high school graduate, one of the potential prime categories of "beneficiaries" of Obama's Order.

A "young person" who wants to take advantage of the President's "benevolence" may thus have a very difficult choice ahead of him or her.

Get a temporary reprieve, get a work permit, but dime out the family to authorities.

For most, therefore, the Executive Order might thus not be a very nice gift after all.

So, as noted, it will not be pretty.

But, as they say, timing is everything.

The President and his advisors are very good at knowing and taking advantage of that.

By the time that the full impact of the President's immigration slight-of-hand becomes widely evident, the population of this nation will have voted for its next President.

More importantly, to the current administration, the Hispanic citizens of this country will have voted.

As that happens, as a proud Hispanic who does not like his fellow citizens, Hispanic and non-Hispanic alike, being manipulated, I hope that others will being doing so only after having seen through at least some of the Administration's pandering and illusory immigration play.

About The Author

Dan Vara served 22 years with this country's immigration service. During that time, he served as the INS District Counsel in Miami, Florida from 1990 until 2003. He was also the Chief Counsel, ICE, in Orlando, Florida from 2003 until 2006. As the highest ranking federal immigration attorney in the State of Florida, he was at the forefront of many significant immigration enforcement and national security matters. He was also an instructor on such matters at INS, ICE and FBI conferences. He is now in private practice handling U.S. immigration and federal employment matters throughout the United States and abroad.

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

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