Lies and De Facto Amnesty

Administration officials turn to deceit and lawlessness.

In what is being characterized as the Obama administration's attempt to institute "back door amnesty" for illegal aliens, the Houston Chronicle is reporting that a series of internal memos written by Gary Goldman, Immigration and Customs Enforcement's (ICE) chief counsel in Houston, ordered attorneys to review both new and pending cases, and dismiss any of them which did not meet ICE's "top priorities." A series of emails, obtained via the Freedom of Information Act, reveal that the dismissals, which numbered hundreds of cases in Houston alone, were approved by ICE attorneys in Washington, D.C. "It now appears that DHS attempted to mislead the public and Congress on its policy of directing dismissals of cases against criminal aliens," said Jessica Sandlin, Sen. John Cornyn's (R-TX) Texas press secretary. "After this failed attempt at stonewalling and obstruction of the public's right to know, the truth is now coming out."

When the Chronicle originally broke the story last August 25th, it prompted a response from ICE officials in Washington, D.C. who initially stonewalled, but then told several media outlets the dismissals were extremely limited in nature. ICE contended they only applied to immigrants with pending green card applications, as stated in an agency memo written by ICE director John Morton on August 20th.

When the Senate Judiciary Committee demanded an investigation into the matter last October, Homeland Security officials engaged in the same kind of misdirection. The committee sent a letter to Janet Napolitiano, noting that "pending removal proceedings are being dismissed in record numbers,'' pointing to a directive from "Director John T. Morton to all ICE attorneys to review pending cases and seek dismissal if the cases do not involve Level I offenders [aliens convicted of aggravated felonies or two or more felonies]." It further noted that although reports received by the committee "focused only on cases pending before Houston immigration judges, our understanding is that the ICE directive applies nationwide." Nelson Peacock, a top DHS official responded that the directive the committee was citing "does not exist," once again referring back to the August 20th memo which "affects very few aliens, generally non-criminals who have married a U.S. citizen."

When a reporter questioned ICE officials about whether such misdirection was deliberate, they refused to answer. Later, ICE spokeswoman Barbara Gonzalez claimed the Houston memos written by Goldman -- rescinded by his supervisor, Riah Ramlogan, the same day the Chronicle broke the story -- "misconstrued and exceeded the agency's official guidance" regarding prosecutorial discretion.

Ostensibly, the attempt to engage in large-scale dismissals was propelled by a June 2010 memo issued to all agency personnel by Morton, who warned that ICE had limited resources which would allow for the removal of only 400,000 illegals per year. Thus, the agency had to prioritize its deportation process, and focus on those illegals who "pose a risk to national security and public safety, recent illegal entrants and repeat immigration violators." This prompted a meeting by top ICE attorneys in Denver last August, where their own interpretation of Morton's "top priorities" was formulated. This in turn led to Goldman's memos, including one dated August 12th, ordering his subordinates to consider dismissal motions in accordance with those priorities. The memo also shows Goldman formed a task force to review thousands of cases to see which of them warranted dismissal. The memo was forwarded to supervisor Ramlogan, then acting field director for ICE's legal office in Washington, D.C. His response to Goldman's ideas? "Outstanding, Gary," he wrote.

The results of ICE's new criteria were depressingly predictable. From the Chronicle:

Nationally, the numbers of cases dismissed increased about 40 percent during the 2010 fiscal year, which ended Sept. 30, over the previous year, according to an analysis of immigration court data by the Transactional Record Access Clearinghouse at Syracuse University. In Los Angeles, judges dismissed one in four cases, an increase of 200 percent over the previous year. Las Vegas also had a roughly 195 percent increase, and Dallas, Atlanta and Arlington all reported a more than 50 percent, the TRAC data shows.

And that's when immigration courts cooperate. Additional data provided by TRAC reveals that even when ICE requested the removal of an illegal, the rejection rate in some jurisdictions was incredibly high. For example, in FY 2010, immigration courts in New York City turned down 70 percent of the requests, Oregon and Los Angeles turned down 63 percent, Miami, 59 percent, and Philadelphia, 55 percent. TRAC also noted that ICE, in similar fashion to its resistance to providing the Houston Chronicle with immigration information, "has actively sought to prevent the release to TRAC of much more detailed data it has that would better explain the growing rejection rates."

On June 17th, ICE head John Morton issued his latest memo with a list of considerations under which "an exercise of prosecutorial discretion may be warranted for a given alien." It contains 19 separate items administration attorneys can use as factors to push for dismissals, along with eight other "positive factors [that] should prompt particular care and consideration."

The first list includes such factors as "the person's pursuit of education in the United States, 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 United States," and "whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat."

If those two factors sound familiar, it's because they are an integral part of the DREAM Act, which failed to become law as the result of a bipartisan filibuster in a lame-duck session of the Senate in December of 2010. The vote of 55 to 41 was five short of the 60 needed to advance the bill. It had previously passed the then Democratically-controlled House by a margin of 216-198, and it was thought that Democrats, who were pounded in the 2010 election, might get one more major piece of legislation enacted before relinquishing control to Republicans. Much like ObamaCare, the Dream Act was disliked by a majority of Americans, 54 percent of whom opposed its passage, compared to 38 percent who supported it.

Yet it appears that once again, the Obama administration is demonstrating the neither Congress nor the public poses an impediment to implementing its agenda. This contempt for the rule of law was not missed by the Senate Judiciary Committee which noted that ICE is "enforcing the law based on criteria it arbitrarily chose, with complete disregard for the enforcement laws created by Congress," and that the repercussions of such criteria "extend beyond removal proceedings, because it discourages officers from even initiating new removal proceedings if they believe the case ultimately will be dismissed based on the new directive."

Furthermore, despite its rejection last year, Senate Democrats are again trying to revive the DREAM Act, with a hearing scheduled next Tuesday by the Senate Judiciary’s Subcommittee on Immigration, Refugees and Border Security. Homeland Secretary Janet Napolitano and Education Secretary Arne Duncan are set to testify, along with journalist Jose Antonio Vargas, who revealed his status an an illegal alien last week. “These people do not pose a risk to public safety, they do not pose a risk to national security," said Napolitano. “This could be a piece of a solution to a number of the challenges our country faces,” said Duncan, who contended the laws' passage would reduce the federal deficit by $1.4 billion over ten years.

Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, countered that assessment. “Millions of Americans who have lost their jobs in the past few years dream of going back to work," he said, "but the DREAM Act won’t make this dream come true for them.”

Taken together with John Morton's latest memo, and the reality that Democrats couldn't pass this legislation when they had control of Congress and the White House -- including a short period prior to the election of Massachusetts Senator Scott Brown where they had a filibuster-proof majority in the Senate -- and it becomes clear this latest push has very little to do with solving the illegal immigration problem. It is all about shoring up a vital Democrat constituency who must be placated in time for the 2012 election.

Meanwhile, America's borders remain wide open.

Arnold Ahlert is a contributing columnist to the conservative website