Obama Administration Bypasses Congress; Grants Amnesty to DREAM Act Students
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Obama Administration Bypasses Congress; Grants Amnesty to DREAM Act Students

July 6, 2011, 9:12 pm
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One Step Towards Comphensive Immigration Reform
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by Reynold Mason, JD

In a calculated move to bypass Congress, Immigration and Customs Enforcement (ICE) Director John Morton issued a memo on June 17th to all ICE Field Office Directors, Special Agents in Charge, and all Chief Counsel, authorizing them to decline to remove illegal aliens who meet the qualifications for amnesty under the DREAM Act. In the June 17th memo, Director Morton couches this administrative amnesty as merely providing "guidance on the exercise of prosecutorial discretion to ensure that the agency's immigration enforcement resources are focused on the agency's enforcement priorities.  It then provides an extensive,  factors ICE officers, agents, and attorneys should consider when determining whether to pursue the removal of an illegal alien. The factors falling under the purview of the DREAM Act include:

• The circumstances of the person's arrival in the U.S. and the manner of his or her entry, particularly if the alien came to the U.S. as a young child;

• The alien's pursuit of education in the U.S., with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the U.S.;

• Whether the person has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat; and

• The person's age, with particular consideration given to minors.

The memo also lists individuals present in the U.S. since childhood, minors and elderly individuals, and veterans and members of the U.S. armed forces as "positive factors" prompting particular care and consideration.  ICE agents are already heeding the memo's directives. Less than a week after Director Morton issued the memo, ICE agents released University of California-Davis student Mandeep Chahal and her mother, even after the Board of Immigration Appeals ordered them removed to India. The Chahals' attorney, Kalpana Peddibhotla, cited the Morton memo as the reason for her clients' reprieve" I am pretty certain if that hadn't happened, they would be sitting on a plane tonight," Peddibhotla said.

Leaders of the National ICE Council, a union which represents roughly 7,000 ICE agents, officers, and employees, were outraged by the memo and its implications.  "Any American concerned about immigration needs to brace themselves for what's coming," announced Council President Chris Crane in a press release. "Unable to pass its immigration agenda through legislation, the [Obama] Administration is now implementing it through agency policy." The Council also charges that ICE officials worked "hand-in-hand" with the open-borders lobby, but excluded its own officers from the process of developing policies.   

Members of Congress are also alarmed by the Obama Administration's attempt to circumvent the law.  Earlier this month the House of Representatives passed an amendment introduced by Rep. Ted Poe (R-TX) to the Homeland Security (DHS) fiscal year 2012 appropriations bill  which, if passed by the Senate, would in part override the Morton memo by barring DHS funds from being used to grant parole or deferred action to most aliens subject to final orders of removal. The DHS bill is currently awaiting action by the Senate Committee on Appropriations.

Is comprehensive immigraiton reform just around the corner?

House Judiciary Committee Resurrects Immigrant Nursing Program

The House Judiciary Committee passed a bill last week which would re-start an expired program that admits nonimmigrant nurses to work in "health professional shortage areas."  Originally known as the Nursing Relief for Disadvantaged Areas Act of 1999, the program provided an additional 500 nonimmigrant visas each fiscal year to aliens who had obtained a nursing license, passed the appropriate exam and was otherwise eligible.  Each alien was granted an admission period of three years.  Although originally only enacted for a period of four years, the program was extended until it eventually expired in fiscal year 2009.

Under H.R. 1933, sponsored by Judiciary Chairman Lamar Smith (R-TX), 300 visas would be issued for eligible nurses each year for an original time period of three years, at which point these nurses could extend their stay for an additional three years.  During the mark-up, Ranking Member of the Judiciary Committee, Zoe Lofgren (D-CA), successfully offered one amendment which would make these nonimmigrant nursing visas portable, by allowing the aliens who have already been issued a visa to accept new employment as a nurse upon the petition of a new hospital employer.  Both the bill and the added amendment passed through the committee on voice vote.

During the same mark-up session, the House Judiciary Committee also passed the Secure Visas Act by a vote of 17-11. The Secure Visas Act, also sponsored by Chairman Lamar Smith, designates authority to the Department of Homeland Security (DHS) to issue and revoke visas; authorizes DHS to conduct on-site reviews of visa applications in high-risk countries; and prevents judicial review of a DHS visa revocation decision.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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