October 17, 2017

Illegal aliens with deferred action on deportation are still illegal aliens: From a former immigration judge: DACA and REAL ID, a Contradiction in Terms? #DDS

Posted by D.A. King at 10:06 am - Email the author   Print This Post Print This Post  

Andrew “Art” Arthur serves as Resident Fellow in Law and Policy for the Center for Immigration Studies, a Washington, DC-based research institute that examines the impact of immigration on American society.

He began his legal career through the Attorney General’s Honors Program as a clerk to Administrative Law Judge Joseph E. McGuire in the Office of the Chief Administrative Hearing Officer at the United States Department of Justice, Executive Office for Immigration Review. After a two-year clerkship with Judge McGuire, he received a second Honors Program appointment as a Trial Attorney in the San Francisco District Counsel’s Office, and later the Baltimore District Counsel’s Office, of the former Immigration and Naturalization Service (INS).

In 1999, he was promoted to the INS’s General Counsel’s Office in Washington DC, first as an Associate General Counsel, and later as an Assistant General Counsel and Acting Chief of the INS National Security Law Division. In the General Counsel’s Office, Mr. Arthur supervised attorneys handling cases involving espionage, terrorism, and persecutors. He also advised the Attorney General, Deputy Attorney General, and INS Commissioner on issues relating to national security.

In July 2001, Mr. Arthur left the INS to become a Counsel on the House Judiciary Committee, where he performed oversight of immigration issues. After five years at House Judiciary, he was appointed to the immigration bench, serving for eight years as an Immigration Judge at the York Immigration Court in York, Pennsylvania.

At the beginning of the 114th Congress, Judge Arthur left the bench and came back to Capitol Hill, where he served as Staff Director of the National Security Subcommittee at House Oversight and Government Reform before taking retirement from federal service in September 2016.

He is a graduate of the University of Virginia (BA 1988), and of the George Washington University School of Law (JD 1992).


Center for Immigration Studies blog

photo: CIS.org

DACA and REAL ID, a Contradiction in Terms?

By Andrew R. Arthur on October 16, 2017

Much has been said and written in recent days about DACA, or “Deferred Action for Childhood Arrivals.” Interestingly, by its terms, that program appears to contradict the REAL ID Act on the issue of whether the aliens covered by that program have “lawful status.” In reality, however, it does not.

As you’re likely aware, this “executive action” was put into place by Secretary of Homeland Security Janet Napolitano on June 15, 2012. In the memorandum setting forth how that program was to be applied, Secretary Napolitano explained: “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.” [Emphasis added.]

U.S. Citizenship and Immigration Services (USCIS) was given the responsibility to implement this program. On the agency’s web site, responding to the question “What is DACA?” the agency explains:

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status. [Emphasis added.]

In a “Frequently Asked Questions” page on DACA, USCIS, in response that question “What is deferred action?”, states:

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence. [Emphasis added.]

Similarly, in a legal opinion from the U.S. Department of Justice’s Office of Legal Counsel (OLC) captioned “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others,” OLC stated:

As has historically been true of deferred action, these proposed deferred action programs [DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)] would not “legalize” any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time.

Each of these authorities is clear as it applies to DACA that “deferred action” for purposes of that program does not constitute “lawful immigration status” or “lawful status” under the immigration laws.

What about the REAL ID Act? First, as the Department of Homeland Security (DHS) describes it, the REAL ID Act, which was: Passed by Congress in 2005, enacted the 9/11 Commission’s recommendation that the Federal Government “set standards for the issuance of sources of identification, such as driver’s licenses.” The Act established minimum security standards for state-issued driver’s licenses and identification cards and prohibits Federal agencies from accepting for official purposes licenses and identification cards from states that do not meet these standards. READ THE REST HERE and see the linked information.