The April 24, 2018 headline of the New York Times article, U.S. Must Keep DACA and Accept New Applications, Federal Judge Rules summed up Judge John D. Bates’ outrageous decision to force the Trump administration to continue the DACA program created by the Obama administration.
The judge has given the Trump administration 90 days to substantiate President Trump 90 days to justify his claim that DACA is illegal.
Judge Bates’ ruling ignores the indisputable fact that DACA was created by Obama’s Executive Order and not by legislation. Judge Bates apparently believes that Exeuctive Orders must extend beyond the administration of the president who issued those Executive Orders, even when the new president disagrees with them. Bates’ ruling obstructs President Trump’s ability to implement his policies.
In order to understand the issue we must begin by considering the origins of DACA, an acronym for Deferred Action – Childhood Arrival.
First of all, the action that is being deferred by DACA is the required departure of illegal aliens from the United States.
Prior to the Obama administration’s claim of exercising “prosecutorial discretion” to justify the creation of DACA, immigration authorities did use the notion of “deferred action” for humanitarian purposes in a case-by-case basis, to provide nonimmigrant aliens, that is to say aliens who had been admitted into the United States for a temporary period of time, with permission to remain in the United States beyond their authorized periods of admission.
If, for example, a family member of an alien visitor in the United States had fallen seriously ill or became seriously injured, nonimmigrant family members would be allowed to remain in the United States for a finite additional period of time, to tend to their stricken family member.
As an INS special agent I was, on occasion, tasked with interviewing medical professionals to verify the medical condition of such individuals to make certain that fraud was not being perpetrated. Generally doctors were required to provide periodic documentation that reported on the medical status of the ill or injured family member.
Once the situation was resolved, hopefully with that family member making a sufficient recovery, the alien beneficiaries of that temporary deferred action were required to depart from the United States.
Obama however, exploited this humanitarian program, that was supposed to be used in a limited case-by-case basis, to achieve a political goal by enabling potentially millions of illegal aliens to remain in the United States as quasi-lawful immigrants for an initial two year period, even though there is no provision in the immigration laws for this action.
Under current immigration law, the U.S. generously, provides approximately one million aliens are granted lawful immigrant status for a number of circumstances that do not begin as a reward for violating our immigration laws. That number of new immigrants surpasses the number of immigrants admitted by all of the countries on earth, combined.
On June 15, 2012 President Obama delivered a statement from the White House Rose Garden in which he announced his plans to create DACA via an Exeuctive Order. His statement made it clear that DACA was an end-run, around the legislative process, to provide illegal aliens with immigration benefits contained in the DREAM Act, which failed to pass in the Congress.
The DREAM Act is an acronym for Development, Relief, and Education for Alien Minors Act. It is more than a bit confounding that under the guise of “Political Correctness” actually an exercise of Orwellian Newspeak, the term “alien” has been expunged from discussions about immigration. That term has come to be referred to as “hate speech” by immigration anarchists
Yet that word is included in the acronym “DREAM” and illegal aliens who participate in this wrong-headed program have come to be known as “DREAMERS.”
Hypocrisy is alive and well in the immigration debate.
Furthermore, the claim that the “DREAMERS” were all children when they were brought to the United States and hence too young to have control over their circumstances, is yet another artifice and one repeated by the media every time this issue is discussed.
In reality, aliens were eligible to apply to participate in Obama’s program if they had not yet attained the age of 32 when they filed their applications and claimed that they entered the United States prior to their 16 birthdays.
With so many applications and so few resources, there were virtually no interviews and no field investigations to verify the claims made in the applications that, thus far, have been filed by nearly 800,000 illegal aliens.
This creates an open invitation to fraud.
Imagine, for example, how effective law enforcement would be in stopping speeders if police officers had no radar units and could only issue a speeding tickets if drivers admitted to exceeding the speed limit. This is, in essence, how these DACA applications were processed and continue to be processed under Judge Bates’ ruling.
Today, six years after Mr. Obama’s DACA program was created, aliens as old as 37 years of age could apply for DACA- provided that they claim to have entered the United States before they turned 16.
An alien who lies on that application would be committing a serious crime, immigration fraud. However, given the scarce resources, if Judge Bates gets his way, unknown millions of illegal aliens could easily game this program.
Adult illegal aliens who have not yet entered the United States could easily falsely claim to have been present in the United States for decades, justifiably confident that their fraudulent claims would not only go undetected but rewarded.
What could possibly go wrong?
Once terrorists had entered the United States, their next challenge was to find a way to remain here. Their primary method was immigration fraud. For example, Yousef and Ajaj concocted bogus political asylum stories when they arrived in the United States. Mahmoud Abouhalima, involved in both the World Trade Center and landmarks plots, received temporary residence under the Seasonal Agricultural Workers (SAW) program, after falsely claiming that he picked beans in Florida.
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Terrorists in the 1990s, as well as the September 11 hijackers, needed to find a way to stay in or embed themselves in the United States if their operational plans were to come to fruition. As already discussed, this could be accomplished legally by marrying an American citizen, achieving temporary worker status, or applying for asylum after entering. In many cases, the act of filing for an immigration benefit sufficed to permit the alien to remain in the country until the petition was adjudicated. Terrorists were free to conduct surveillance, coordinate operations, obtain and receive funding, go to school and learn English, make contacts in the United States, acquire necessary materials, and execute an attack.
Obama falsely claimed that “Congress had failed to act,” blithely ignoring that when Congress votes down legislation it is, indeed, acting- just in this instance, not the way he wanted Congress to act.
On June 17, 2012, Fox News published my Op-Ed, Obama Invokes Prosecutorial Discretion to Circumvent Constitution and Congress, in which I stated that, given all of the facts, what Obama had referred to as “Prosecutorial Discretion” should, actually, be referred to as “Prosecutorial Deception.”
Prosecutorial discretion is often used by government and law enforcement agencies to not squander limited resources but to use them most effectively, not unlike the concept of a medical triage whereby in an instance of mass casualties, the most seriously injured are treated before those with relatively minor wounds.
In creating DACA, the Obama administration did not simply ignore illegal aliens not deemed essential to arrest, but created an expensive program that required that limited resources were diverted to provide huge numbers of illegal aliens with lawful status without legal authority.
This disingenuous, supposed justification for creating DACA caused me to describe Obama’s claims as an example of “Prosecutorial Deception” in my Fox News commentary.
Furthermore, the Obama administration’s use of the term “Deferred Action” was clearly another artifice. DACA was not intended to postpone the eventual departure of the huge number of illegal aliens who were dealing with personal emergencies, but rather serve as a stop-gap measure to enable them to remain in the U.S. until, Obama had hoped, Congress would pass legislation that would permanently legalize their immigration status by creating a massive amnesty program.
This, in and of itself, runs contrary to the principles that underly the concept of “Deferred Action.”
News coverage about DACA has failed to report on that which I have noted in my commentary, but has become a conduit for the dissemination of propaganda and the disingenuous claims made by the Obama administration, parading those falsehoods as supposed facts.
Mainstream media coverage and discussions about DACA have ignored how the Obama administration perverted the discretionary authority inherent in deferred action, for humanitarian purposes, to create a de facto temporary amnesty program, conferring lawful immigrant status on nearly 800,000 illegal aliens, who may not even be children but actually middled-aged.
By denying President Trump the right to terminate DACA, Judge Bates apparently seeks to legitimize Obama’s DACA Executive Order, treating it as law, when in reality DACA co-opted Congress’ unique legislative authority.
America is a nation of laws, not Executive Orders.