IRLI and FAIR File Comment with USCIS Opposing Obama Administration Waiver Program

September 22, 2015

In addition to expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, in November 2014 President Obama and Department of Homeland Security (DHS) Secretary Johnson announced that they had directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to reinterpret as many of the removal and relief from removal provisions of the immigration laws as possible in order to administratively create a national amnesty that Congress had declined to enact. These executive amnesty programs all rely on a radical theory of Secretarial discretion that shifts power to determine eligibility for immigration benefits from Congress to DHS. This theory has never been recognized by Congress, but is very difficult to challenge in courts, which bar private citizens from filing suit to enforce immigration laws. Only IRLI in the Washtech v. DHS lawsuit that successfully challenged an administrative rule that allowed foreign nationals to work on student visas after graduating from college and the 26 states in the Texas v. United States lawsuit pending in the Fifth Circuit have been able to sustain legal challenges against the out-of-control DHS.

One of the most significant agency attacks on immigration enforcement is arising in the obscure but vital area of waivers of removal. The general public is unaware that for most legal grounds for removal, including crimes, fraud, and illegal entry, illegal aliens can apply to “waive” their status as removable, usually on various vaguely worded hardship grounds. Filing waivers is a big area of practice for many immigration lawyers.

One of the major reforms to strengthen immigration enforcement passed by Congress in 1996 was the “3-and-10-year bars” to admission. If an alien remains in the U.S. more than 180 days beyond his or her authorized stay, they may not reenter the U.S. for 3 years after the date they actually depart. There is a waiver available for these bars, but only for inadmissible aliens who have a U.S. citizen or legal resident alien spouse or parent who will suffer “extreme hardship” if the alien is denied entry. See Immigration and Nationality Act § 212(a)(9)(B)(v). In practice, the waiver was not considered an amnesty provision because (1) it was difficult to prove extreme hardship suffered by a U.S. parent or spouse, and (2) an illegal alien could only apply for the waiver AFTER he or she had departed the U.S. and applied for an immigrant visa at a U.S. consulate abroad. But unlike DACA, where an illegal alien receives only a temporary deferral of removal proceedings, an unlawfully present alien who is granted a waiver of admissibility can be admitted as a lawful permanent resident, a “green card” holder in popular parlance.

Beginning in 2013, the Obama Administration identified this waiver as a key amnesty gateway. DHS issued regulations for a “Form I-601A” that allows immediate relatives of U.S. citizens to apply for the waiver while still in the United States, that is, BEFORE they are eligible under the law. With a pre-approved waiver, the alien could take a short trip abroad and process their immigrant visa at a U.S. consulate based on a single interview.

Recently DHS issued proposed regulations that would greatly expand the “provisional” waiver program to allow any illegal alien who has applied for an employment, family preference, diversity or special immigrant visa to become eligible for the waiver. The regulations, however, deliberately exclude a definition of extreme hardship, presumably leaving the determination to individual USCIS employees.

Recognizing this complex process as yet another executive amnesty program that the Obama Administration has tried to bury under secretive agency procedures, IRLI and the Federation for American Immigration Reform (FAIR) filed on Monday a public comment (attached here) detailing the illegal aspects of the I-601A program and calling for a recall and complete rewrite of the proposed regulations. IRLI and FAIR noted that a recent Supreme Court case, Judulang v. Holder, has restricted the authority of DHS to make sweeping policy changes to immigration enforcement programs enacted by Congress. The IRLI/FAIR public comment challenges the DHS claim that it can “provisionally” waive the requirement that the alien depart the U.S. before applying for the waiver. If IRLI and FAIR are correct, Judulang made all of the Obama executive amnesty programs vulnerable to a legal challenge under the Administrative Procedure Act, the federal rulemaking statute. The IRLI/FAIR public comment pointed out that the waiver was not enacted to promote “family unity” and that the Administration’s attempt to hijack the program on that basis was arbitrary and capricious. The public comment criticized the decision not to define “extreme hardship” in the proposed regulation, as it is the central element of the provision as enacted by Congress.