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Up to now, the idea of legalizing up to 11 million unauthorized immigrants through executive order, otherwise known as Plan B, has been treated by the media as little more than a rhetorical flourish by Senator Marco Rubio (R-FL) to scare House Republicans into supporting CIR. Rubio is widely considered to be merely raising the specter of a bogeyman, i.e. President Obama, who would use dictatorial power to grant legalization without the border security and internal enforcement measures which Rubio and a few other Senate Republicans fought so hard and so successfully to include in the Senate's CIR bill, S. 744.
But what if there already is a Plan B waiting to be put into action by this administration? An August 15 article in slate.com by David Weigel reports that there may have been one since as long ago as 2010. His article originally appeared Thursday evening under the title: Is Rubio Right? Can President Obama Give Amnesty to Illegal Immigrants By Himself? Sort Of!
Then, only a few minutes later, perhaps because the code words "amnesty" and "illegal" in the first title might have given the impression of an anti-immigrant bias, the title, without any change in the article's content, was amended to: The Secret Memo That Explains How Obama Can Unilaterally Legalize All Immigrants, But Won't.
The memo referred to purports to be an internal DHS memo dated February 26, 2010 which only has the title Administrative Options. No author's name appears.
The 2 and 1/2 page memo, which is part of a 10 page memo dealing with other immigration issues as well, can be accessed by following a link in Weigel's article.
This platform will not let me show the link to Weigel's article correctly, so I recommend Google search in order to access it. Just type in the title and it should show up.
The DHS memo begins by stating the objective of a legalization program with two phases, very similar to those which were to be adopted three years later in the Senate's CIR bill.
Phase 1 would consist of registration of all qualified unauthorized immigrants (i.e. not security risks, or presumably, serious criminals) and issuing them work permits.
Phase 2 would consist of granting permanent residence for legalized immigrants who had fulfilled additional statutory requirements.
The memo goes on to state:
"In the absence of legislation, much of Phase 1 of the program could still be implemented, either by the Secretary of Homeland Security granting eligible applicants deferred action status or the President granting deferred enforced departure."
The memo then lists a number of pros and cons. Most of the pros include the benefits of bringing 11 million people of out of the shadows which we are familiar with in the current debate over CIR. However, one of them is particularly worthy of note in view of the current House obstructionism against legalization:
"A bold administrative program would transform the political landscape by using administrative measures to sidestep the current [as of 2010] state of Congressional gridlock and inertia."
Now for the cons:
First, there are the cons related to the political side: opponents could condemn legalization for all unauthorized immigrants as an "abdication" of duty to enforce the laws, an attempt to run around Congress (as it would be by definition), "amnesty", and "pandering" to Latino voters. Sound familiar?
But, three years after this memo was written, we do not have a Plan B for all unauthorized immigrants; it is there only for limited classes of people - DACA beneficiaries and "low priority" unauthorized immigrants. General legalization exists only in the form of S.744, passed in the Senate after full discussion and debate. But has going through the proper Congressional process in the upper chamber done anything to silence the shrill voices of opposition to "amnesty", "abdication" of duty to enforce the law, and "pandering" to Latino voters? Not very much.
However, the memo's next items on its list of cons are potentially more serious. They include possible Congressional attempts to limit or deny deferred action authority, either by statute (unlikely, however, as long as the Democrats control the Senate and the White House - they also controlled the House of Representatives when this memo was written), or by denying funding.
The latter might be a real possibility now with Republicans in control of the House. However, the two main arguments against sweeping administrative legalization appear at the end of the memo:
"An administrative solution could dampen future efforts for comprehensive reform and sideline the issue in Congress indefinitely."
Rephrased in today's terms three years later, this could mean losing the bipartisan support which was essential to drafting CIR in the first place and passing it in the Senate.
However, an even more serious obstacle could be one which was originally included in the memo and then apparently deleted, for some reason, namely the threat of legal action. Arguably, this should be the administration's greatest worry if Plan B is ever adopted, given the current make-up of the Supreme Court.
Here is my own suggestion as to how some of the above obstacles to Plan B, including the threat of legal action, might be avoided. Since anti-immigration House Republicans are so attached to a "piecemeal" approach to killing reform, i.e. death by thousand cuts (or half a dozen enforcement-only bills), why not implement legalization by executive action in a piecemeal way too?
As everyone on both sides knows, the process has already begun with last year's two initiatives mentioned above. There is no reason why this process could not continue incrementally, by creating additional subclasses of unauthorized immigrants to be granted administrative legalization or "deferred action" from time to time - starting, for example, with people who have young USC children and moving on from there in stages.
If anti-immigrant zealots can get away with using "piecemeal" anti-immigrant bills to kill comprehensive reform, what would be wrong with using piecemeal administrative legalization to accomplish it over time?
Updated 08-16-2013 at 09:53 AM by ImmigrationLawBlogs
One of the most frustrating aspects of the country's immigration detention system is how Immigration and Customs Enforcement deliberately tries to isolate detained individuals by making it difficult for them to have contact with friends, family and legal counsel. The way this has been accomplished is to move detainees to facilities far from their homes - often to completely different parts of the country.
Community groups in the areas near detention facilities have tried to help by setting up visitation programs where volunteers go to detention facilities to spend time with individuals who often are only guilty of immigration violations. Now after some of the groups have criticized ICE's management of its detention facilities, the agency is retaliating by barring visitors. According to Sarah Shourd of Solitary Watch, who writes on Huffington Post:
Victoria Mena, coordinator of the Friends of Adelanto Detainees visitation program, arrived on Friday, July 26th, at the Adelanto Detention Center in the Mojave Desert. For weeks she'd been visiting and checking in on Mr. S*, an immigrant father of two U.S. citizens, on days when his family was unable to make the trip to the desert. Without an explanation, ICE informed Mena that day that her name was on a no access list, and that she was forbidden to visit anyone at the facility.
"The purpose of the Friends of Adelanto Detainees program is to end the isolation that the men at this immigration detention facility are going through. The guys at this center are far away from their family and friends, and have no real connection to the outside world. Some are in really dark places, and it means a lot to have someone to talk to, to share an hour with. We saw the impact it had on the faces of those we visited with," Mena said.
Mena's visitation program is part of a national visitation movement, and her program is similar to the 27 other immigration detention visitation programs in 14 states. The movement to end isolation has grown from just a handful of visitor volunteers with four programs in 2009 to over 700 volunteers across the country today. This rapid growth has been in large part due to the support of a national organization, Community Initiatives for Visiting Immigrants in Confinement (CIVIC).
Recognizing the visitation movement's growing power, ICE began to crack down on three Southern California visitation programs, Friends of Adelanto Detainees and two Orange County programs. CIVIC's co-executive director, Christina Fialho, recently wrote a blog post on the Huffington Post criticizing the lack of leadership and independent oversight at ICE. Less than 48-hours after the Huffington Post published Fialho's blog, ICE suspended the three visitation programs operating at the Adelanto Detention Center, the James Musick Facility, and the Santa Ana City Jail.
I'll be interested in hearing how ICE defends its conduct here. But I suspect now that this has gotten exposure in the media, we'll see a quick reversal. Which is, sadly, how things often work at DHS.
Updated 08-15-2013 at 08:39 PM by GSiskind
The recent statement by pro-reform Senator Marco Rubio (R-FL) to other Republicans that if the House doesn't pass a legalization bill similar to the Senate's S.744, President Obama will legalize 11 million unauthorized immigrants through executive action has been greeted by many immigration reform supporters as if it were an endorsement of Plan B rather then a warning against it.
Regardless of the actual merits of Plan B (which immigration reformers should support, in my view, despite the formidable political and legal risks); the (seemingly remote) chances that President Obama might ever carry it out, and its (questionable) Constitutionality, all discussed in my recent posts, it is important to understand what Rubio really meant.
As Kevin Drum points out in Mother Jones (where he also referred to an August 13 Washington Post column by Greg Sargent making a similar point), Rubio's intention was not to endorse Plan B, but to use it as a scare tactic in order to bring his anti-immigrant Tea Party base over to the side of reform.
Drum writes as follows in his August 15 comment Rubio: Pass Immigration Reform or Obama the Tyrant Will Do Even Worse:
"...Rubio's latest effort isn't likely to cut much ice with opponents of immigration reform. Rather, it's interesting for what it says about how Rubio views his Tea Party Base. Basically, he's given up on reasoning with them. Instead, he figures the only way to win them over is to appeal to their paranoid belief in Obama the tyrant, the man whose unilaterally ruining America by running roughshod over Congress with his dictatorial executive order powers. Reason might not work, but perhaps they hate and fear Obama even more than 11 million undocumented immigrants."
Drum adds, in a comment with the same spirit as my own recent post comparing the Tea Party to the Golem from Jewish folklore:
"And who would know better than Rubio. After all he helped build this base."
First, it is important to point out that, as Greg Sargent mentioned in his WP column, the GOP fear of a Plan B presidential legalization executive order is not only based on the "Obama the Tyrant" bogeyman (which Rubio demagogically played to without actually using that phrase), but also on the fear that Plan B might lead to legalization without the increased border security and e-verify so dear to Republican hearts.
Drum's last sentence might also remind those who are familiar with classical literature of a phrase in Ovid's invocation to the gods at the beginning of Metamorphoses, his most famous poem:
nam vos mustatis et illas ("After all, you [gods] changed even these")
No one can dispute that the Tea Party has made big changes in the Republican party, and in American politics in general. But just as the numerous transformations which Ovid describes in his lengthy poem were by no means all beneficial ones (not to mention the change in his own circumstances when he was "deported" from Rome for the rest of his life shortly after completing the poem by a real tyrant, Augustus Caesar), the Tea Party which forms Rubio's base has pulled the GOP far to the right on immigration, as well as on so many other issues.
Tea Party sympathizing (or fearing) House Republicans are now trying to carry out their own destructive "metamorphosis" of CIR, by transforming the Senate's comprehensive legalization bill into a number of smaller, enforcement-only ones.
Will Rubio's attempt to suggest that Obama is a tyrant capable of anything bring about a metamporphosis in the implacable opposition to immigration reform by the majority of House Republicans? This remains to be seen.
Here are the links:
To Kevin Drum:
To Greg Sargent:
Updated 08-15-2013 at 10:14 AM by ImmigrationLawBlogs
In my August 13 post, I suggested that House Republicans might try to impeach President Obama if he issues a "Plan B" executive order legalizing 11 million immigrants in the event that the House were to kill immigration reform, as most Congressional Republicans appear anxious to do.
However, like many other things that the House is threatening to do these days, this would only be an empty gesture, because the chances of the president's actually being removed from office by a Democratic-controlled Senate are zero.
Moreover, if the House doesn't try to impeach President Obama over an immigration executive order, many Republicans seem to be looking for some other excuse to hold an impeachment circus, as I also mentioned in my last post.
The fact that the president was born, for example, seems to be grounds for impeachment in the view of some Republicans. Impeachment might even be considered a badge of honor - a sign that a president really did something for America in order to become the target of right wing lunacy.
A more serious obstacle to an executive order for legalization could be a court challenge on Constitutional grounds. It is true that the executive has great leeway in administering the immigration laws, but this is not unlimited.
Also, this argument cuts both ways. If a Democratic president has the power to legalize 11 million people with the stroke of a pen, what would there be to stop a future Republican president from revoking the visas, or even green cards or naturalization, of many millions more people through administrative action, say on "national security" grounds?
At some point the Supreme Court would have to step in, just as it did in 1952 when President Harry Truman tried to nationalize the steel industry during the Korean war. See Youngstown Sheet & Tube Co. et al. v. Sawyer 343 U.S. 579 (1952).
I remember as a student who had just finished my first year of high school at that time what a tremendous uproar there was when the Supreme Court invalidated the president's attempt to take over the industry based on his claim of emergency powers, even though every one of the nine justices who heard that case had been appointed either by Truman himself or by his Democratic predecessor, Franklin Roosevelt.
If President Obama were to issue a sweeping Plan B executive order after Congress had refused to pass legalization, what chance would this action stand in today's Republican-dominated Supreme Court? Would even any of President Obama's own Democratic appointees stand with him? This is highly doubtful.
Even if Congress eventually passes CIR, there is almost certain to be a Republican-inspired Constitutional challenge to legalization on some grounds or other, just as there was with the Affordable Care Act.
As we all remember, the ACA survived in the Supreme Court by only one vote. If there ever is a Senate-House conference on CIR, as some optimists are still convinced there will be, the conferees will need to be careful that in addition to avoiding substantive poison pills in the final version, any possible Constitutional poison pills will be eliminated too.
Updated 08-14-2013 at 10:15 AM by ImmigrationLawBlogs
by Chris Musillo
The Department of State has just released the September 2013 Visa Bulletin. There has been a dramatic jump for India EB-2 -- all the way to June 15, 2008. MU Law expected that an India EB2 progression would happen, although it took a lot longer than we expected. Suffice it to say, had it happened earlier in the year, the August and September jumps would not have been as dramatic. Nevertheless, the India EB-2 progression is great news.
The other big movement was in the EB-3 category. All other (ROW) EB-3 surged forward 18 months. It is now at July 1, 2010. India and Philippines EB-3 also moved ahead several months.
Here is the chart:
September 2013 Visa Bulletin
All Other Countries
The Department of State explained the rationale for the massive progression:
India: This cut-off date has been advanced significantly more than originally expected, based on the projection that there would be ďotherwise unusedĒ numbers under the overall Employment Second preference annual limit. This is the result of a decrease in Employment First preference number use, and a similar decrease in Employment Second preference demand for most other countries during the past two months. It is expected that such movement will generate a very significant amount of new India demand during the coming months.
The Employment-based Third preference cut-off date for most countries was advanced at an extremely rapid pace in April through July in an effort to generate demand. Historically such movements have resulted in a dramatic increase in applicant demand for numbers within a few months. At this time there is no indication that the expected increase is materializing or will do so in the near future. This has resulted in significant movements in the September cut-off for all countries.
It is unlikely that there will be any forward movement of most Employment-based cut-off dates during the next couple of months. In addition, a sudden surge in demand could require the retrogression of a cut-off date at any time. Such action would be required if it appears that such number use could impact visa availability under the FY-2014 annual limits.
Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Updated 08-13-2013 at 03:32 PM by CMusillo