Obama Invokes Prosecutorial Discretion to Circumvent Constitution and Congress

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President Obama has acted to circumvent the legislative process to provide unknown numbers of illegal aliens that could potentially number in the millions with employment authorization. He and Secretary of Homeland Security Janet Napolitano claim that this is nothing more than a matter of “prosecutorial discretion.” In my judgment, this should be more accurately described as an example of “prosecutorial deception.”

First and foremost our immigration laws were enacted for two fundamental and essential purposes: to protect American lives and to protect American jobs. Our immigration laws are completely and utterly blind as to race, religion or ethnicity and only differentiate citizens of the United States from those who are not citizens.

Legally, the succinct term that our immigration laws to describe foreign nationals who are present in our country is alien—a term that those who oppose the enforcement of our immigration laws eschew, not because the term is the pejorative that they falsely claim, but because that term provides clarity to the debate.

Many of the statements made by the president and by Secretary of Homeland Security Napolitano are fraught with false or misleading assertions. First of all, the President referred to the aliens who would benefit from his use of prosecutorial discretion “Dreamers,” an obvious reference to the DREAM Act—legislation that, according to the President, was not passed due to inaction by politicians.

In point of fact, Congress did act—it acted decisively to vote down both the DREAM Act and Comprehensive Immigration Reform, legislation that was, in the view of those elected representatives who voted against those bills, not in the best interests of our nation or our citizens.  

Under our Constitution the Congress represents the will of the people. It would certainly appear that the administration is acting to circumvent the immigration laws that Congress would not amend or alter.  

Second, it is disingenuous to claim that the purpose for his actions was to assist young immigrants.  Under the measures that the administration is taking, aliens who had not attained their 30th birthday would be eligible to participate in the process to be granted employment authorization.

How could a person who is approaching his 30th birthday be considered a young person or child?  Yet repeatedly the President invoked the claim that his use of prosecutorial discretion was intended to assist young people who are “talented, driven and patriotic.” He went so far as to assert that these young people are, “for all intents and purposes, Americans.”  How could anyone know how talented, driven and patriotic millions of illegal aliens are whose true identities, backgrounds and affiliations are unknown and unknowable?

Our immigration laws provide a lawful means for lawful immigrants to acquire United States citizenship through the naturalization process that is not simply a formality but is intended to make certain that our nation does not simply hand out the keys to the kingdom that naturalization provides.

In his speech the President says that we are a nation of laws and a nation of immigrants. Yet by his actions, key reasons for our immigration laws will be ignored by those employed by our government to enforce and administer those laws.  

We are indeed a nation of immigrants and each and every year more than 1.1 million aliens are admitted into the United States as lawful immigrants who on the day that they are given their green cards are placed on the pathway to United States citizenship. However, the difference between an immigrant and an illegal alien is comparable to the difference between a houseguest and burglar.  

Next, the administration is claiming that some 800,000 illegal aliens would be eligible to participate in this program. There is no reliable way of knowing how many illegal aliens would be eligible and it should be remembered that when the Amnesty of 1986 was enacted, it was claimed that about one million illegal aliens would participate in that program, yet when the bureaucratic dust settled, more than 3.5 million aliens were granted amnesty.

In the program now being cobbled together by the Obama administration, aliens would have to claim to have entered the United States prior to their 16th birthdays and to have remained in the United States continuously for at least the last five years. But the point is that a 29-year-old alien who ran our borders and in the process created no record of his (her entry) would be able to apply to participate in this program.

In my experience as an INS special agent, I found that many illegal aliens used multiple false identities. It has been estimated that the vast majority of illegal aliens who are present in the United States are under age 35. By making age 30 the cutoff point, it must be presumed that the potential is for millions of aliens to claim to meet the requirements to participate in the program being created by the Obama administration.  

United States Citizenship and Immigration Services, or USCIS, would be required to process these applications. It has been reported that at present USCIS processes more than 6 million applications for various immigration benefits each year including aliens who apply to acquire lawful immigrant status and United States citizenship.

The beleaguered adjudications officers of that agency are constantly being pressured to keep up with the backlog of applications. The easiest way to reduce the backlog is to approve applications. An approval only takes a few minutes, denying an application could take hours. The program mandated by the administration could potentially dump millions of more applications onto the desks of those overworked adjudications officers who would only be able to spend a few minutes to review and process each application.

It is likely that most applications would not entail an in-person interview, but would be done purely by having an adjudications officer review the application and supporting documents—creating a potential for fraud and identity theft.  An alien who provided a copy of a transcript to a school would have no way of proving that he (she) is actually the person named in that transcript and actually attended that school or was actually present in the United States for the requisite period of time or entered the United States prior to his 16th birthday.

Concerns about the potential for fraud in this program are not without good reason. There have been a long succession of GAO and OIG reports that reflected a high level of fraud within the immigration benefits program and, in fact, the 9/11 Commission noted that of 94 terrorists who were identified as having operated in the United States in the decade leading up to the terrorist attacks of September 11, 2001, approximately 2/3 of those terrorists (59) used visa fraud or immigration benefit fraud to enter the United States.

This raises the highly disturbing issue that this program carries with it serious national security risks. This program would, of necessity, require that illegal aliens be provided with official identity documents that would enable them to create new identities for themselves.  

Additionally, it is unfathomable how providing employment authorization to hundreds of thousands if not millions of heretofore illegal aliens is helpful to millions of American workers who are unemployed or underemployed and seeking gainful employment so that they can support themselves and their families.

This is especially impossible to understand given the fact that record numbers of homes have been lost to foreclosure and record numbers of Americans now live below the poverty line. Providing employment authorization to these huge numbers of illegal aliens is the equivalent of having lots more kids enter a room where the game of “Musical Chairs” is being played, but without providing more chairs for the players.

Where joblessness is concerned, however, we are not talking about a childhood game but the life and death challenges being confronted by millions of American families of every race, religion and ethnicity.

We are often told that the President’s action will be favored by Latino voters. It is remarkable that so many journalists claim to be concerned about “racial profiling.” Yet these same journalists are quick to talk about the mythical “Latino voters.” Anyone who believes that any group of ethnic voters such as “Latino voters,” “Black voters” or “Jewish voters” will vote the same way as others of the same ethnicity or religion is, in my opinion, guilty of an insidious form of profiling.

It is inconceivable that any voter of any race or ethnicity would be happy to know that illegal aliens who violated our borders and our laws would be rewarded for their violations of law with employment authorization, that would give them equal standing in seeking employment with American workers and with lawful immigrants who abided by our laws and waited on line in order to be able to become lawful immigrants.

When the President stood before the cameras and microphones in the White House rose garden on June 15, 2012 and announced this program, in a manner of speaking, he fired the starter’s pistol for aspiring illegal aliens from around the world and, for them, our borders are the finish line.

 

Michael Cutler is a retired Senior Special Agent with the Immigration and Naturalization Service, the federal immigration agency that preceded the Department of Homeland Security.

 

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