Deceptive Semantics and the Amnesty Debate

Views From The Bench

January 12, 2015

Don’t be fooled by the smoke and mirrors of deceptive semantics. An illegal alien is an illegal alien! The illegal status of illegal aliens does not change by attempting to soften their public image or confuse their legal eligibility to remain in the United States.

For years, open border and immigrant advocacy groups have tried to mischaracterize the image of illegal aliens by claiming that the term is demeaning, politically incorrect, or an inappropriate misrepresentation or depiction of the nature of their status or presence in this country. There is nothing demeaning nor inappropriate about the term. It is legally accurate and used repeatedly in the Immigration and Nationality Act (INA) and in implementing regulations and case law interpreting immigration law.

The term “illegal” is defined in the Merriam Webster Dictionary as “not according to or authorized by law; unlawful; illicit; see also, not sanctioned by official rules”. The Random House College Dictionary adds to the definition “not legal; contrary to existing statutes and regulations.” Section 101(a)(3) of the INA defines the term “alien” as meaning any person not a citizen or national of the United States. The term “legalize” is defined in Black’s law Dictionary as “to make legal or lawful; to confirm or validate what was before void or unlawful, to add sanction and authority of law to that which before was without or against the law” Thus, an alien cannot legalize or change status from illegal to legal unless that illegal alien is eligible and made legal in accordance with the procedures and provisions set forth in our existing statutes and regulations. Section 101(a)(20) of the INA states that the term ”lawfully admitted for permanent residence” means the status of having been accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

Those who promote the idea of referring to illegal aliens as “undocumented aliens”, unauthorized aliens” or “dreamers” (referring to those who could have obtained legal residency through various versions of the “Dream Act” which has repeatedly failed to be enacted) desire to blur the distinction between legal and illegal. The argument is premised on the belief that illegal aliens are deserving of status, yet only lack the documents or the action of those vested with the authority to make them legal.

We liken legal immigration status to the condition of pregnancy. Either you are pregnant or not. Either you have legal status or you do not. You can do everything in your power to become pregnant, you can dream of becoming pregnant, you can portray yourself to be pregnant, you can feel deserving of being pregnant, or you can obtain a political party’s blessing to be pregnant, but if conception has not occurred you are not pregnant. The same goes for obtaining legal immigration status. You can do everything in your power to become legal, you can dream of having legal status, you can portray yourself as having legal status, you can feel deserving of having legal status, or you can obtain a political party’s blessing to having legal status, but if legalization has not occurred, you do not have legal immigration status to remain in the United States permanently or to enjoy the benefits and entitlements of legal residency.

There is another concept in immigration law that fogs the distinction between legal and illegal immigration status that makes it more complicated to understand. This further enables those who wish use deceptive semantics to promote the amnesty agenda. It is important to understand that an alien may be legally present in the United States without having permanent legal residency status. This occurs because some aliens are allowed to legally enter this country as nonimmigrants with visas for specific purposes. Examples of these types of legal admission include those entering with visitor visas, student visas, or work visas. These visas provide their holders with specific privileges (to visit, go to school, work in specific jobs or for specific employers, etc.) and are temporary in nature. These nonimmigrant visa holders are not given permanent legal residency and they are not afforded all of the rights, benefits, privileges and entitlements of permanent lawful residents or United States citizens. These visa holders are legally present and are not deemed to be illegal aliens as long as they maintain their nonimmigrant status and comply with the terms of their visa category. They are not subject to being placed in removal proceedings or being deported. If however, they fail to comply with the terms of their visas, they are no longer legally present in the United States and they are subject to removal. For instance, if an alien with a visitor’s visa does not leave this country within the prescribed time, he is no longer viewed as a nonimmigrant, but rather as an immigrant with intentions to remain permanently. That alien has now become an illegal alien because he or she did not comply with the terms of the nonimmigrant visitor’s visa. The same scenario could occur to an alien with a valid student visa. That alien would be legally present as long as the alien remains a student, but the legal presence would end if the alien did not enroll in school or quit school and did not timely leave this country.

It is important to distinguish between those aliens who are here illegally, those aliens who are legally present, and those who have become have been lawfully admitted for permanent residence or granted United States citizenship. Their treatment under our immigration law is different and their rights, privileges, and their entitlements under our law are also different. The problem with amnesty pursuant to executive order and deferred action is that it treats illegal aliens who have been granted deferred action as though they have been legalized. It grants them temporarily some of the same rights, privileges, and entitlements as lawful permanent residents and U.S. citizens enjoy. They are entitled to receive employment authorization, a social security card, a driver’s license and even advance parole that allows travel outside the United States. As a general rule, the INA and our regulations do not provide these benefits for illegal aliens. The illegal aliens granted deferred action are also freed from the sanctions which our law dictates are to be imposed against illegal aliens and they are temporarily shielded from being placed in removal proceedings and removed.

The President and amnesty proponents drafted and promoted the “Senate Gang of Eight” bill to legalize the nearly eleven million illegal aliens present in this country in rubber stamp fashion. When that bill was not passed by Congress, they resorted to a new strategy. The President pronounced that he would take unilateral action through executive orders to grant what is tantamount to de facto amnesty to as many illegal aliens as possible. The Deferred Action for Child Arrivals (DACA) program is a precursor and the operating model for a rapidly progressing and greatly expanded amnesty program. We do not malign those who support humanitarian approaches to immigration enforcement. However, proponents of administrative deferred action and de facto amnesty have become map makers for the misguided who have charted a dangerous course devoid of the legislative safeguards of our democratic society. Major concerns with this unilateral ill-advised ideological agenda include the fact that the DACA program itself as well as the proposed expanded program are likely to be found to be unconstitutional and unlawful.

We view these programs to be unconstitutional as these executive orders ignore the Constitutional restraints imposed upon the Executive Branch of government. All federal officers are required to take an oath or affirmation to support the Constitution. The President takes an oath to “…preserve, protect, and defend the Constitution.” In our view, the President has violated Article II, section 3 of the Constitution which requires that he “take care that the laws be fully executed”. This administration has totally abdicated its Constitutional responsibility to enforce our laws as they presently exist. The Executive branch must not unilaterally amend the laws or ignore extant laws by exempting entire categories of law breakers under the guise of prosecutorial discretion. It is particularly disturbing if it is done for political or ideological policy reasons.

Under our Constitutional system, Congress is charged with enacting the law and the Executive branch is charged with enforcing it. The Constitution divided the powers of the federal government among the three branches, the Executive, Legislative, and judicial and it is a violation of the separation of powers doctrine for one branch to usurp the powers of another.

The Executive branch should take cognizance of the limits of its executive power. The Supreme Court inYoungstown Street and Tube Co. v. Sawyer, 343 U.S. 558 (1952) found unconstitutional a “President’s order that does not direct that a Congressional policy be executed in a manner prescribed by Congress but directs that a Presidential policy be executed in a manner prescribed by the President.” It has been said that the most important part of the case is the three part test set forth in Justice Jackson’s concurring opinion:

In determining the limits of executive authority, there are three general circumstances:

  1. When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.
  2. When the President acts in the absence of either a Congressional grant or denial of authority, he can only rely upon his own independent powers. But there is a zone in which he and Congress have concurrent authority. When this is the case, the test depends upon the imperatives of events and contemporary imponderables rather than abstract theories of law.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest.

Under these criteria, it is very likely that the courts will note the Congressional intent expressed in duly enacted existing laws, the rejection of amnesty legislation introduced in Congress, and the incompatibility of the President’s executive actions and the existing law and find the President’s executive orders unconstitutional, unlawful, and unenforceable.

This President’s “rush to judgment, amnesty for all” attitude and his open border agenda results in a program that makes an end run around Congress without an opportunity for meaningful public debate, review or analysis. Public sentiment for amnesty legislation has diminished significantly recently as more and more people come to realize that it does not resolve the problems or lower the costs of illegal immigration, but rather displaces the rule of law, threatens national security interests, and creates major incentives for even more illegal migration.

The semantics of illegal immigration have clouded the reality of amnesty by executive order. No one has denied that illegal aliens granted deferred action do not receive legal residency or even a path to citizenship. Deferred action is not recognized in the INA or its implementing regulations as giving any type of legal, quasi-legal or even pseudo-legal status to illegal aliens. Deferred action merely provides that by paying an application fee, an illegal alien is shielded from being placed in removal proceedings or removed from this country. Deferred action is only an administrative convenience to the government which gives some cases lower enforcement priority. It is not a status recognized by Congress nor was it ever meant to be an escape hatch for illegal aliens to postpone or avoid removal proceedings or removal itself. An illegal alien granted deferred action is not deemed to be legally present in the United States. An illegal alien granted deferred action is not granted lawful permanent residency. If an immigration officer took it upon himself to take money from an illegal alien as a bribe for not immediately placing that alien in removal proceedings, he could be arrested and placed in criminal proceedings. Yet, when the President or leaders of the Department of Homeland Security do it en masse, based upon ever changing criteria of their own design and improvisation, the action is somehow given the imprimatur or “aura” of legality.

Much of the public is under the mistaken belief that these aliens granted deferred action are now “legal” to be in the United Sates. You read it in the newspapers or see it on television all the time. An article in the Tampa Bay Times on August 19, 2014 states: “Dreamers showed up to Senator Marco Rubio’s office in Doral to protest his calls to end deferred action, the Obama program that has given legal status to hundreds of thousands of undocumented youth.”

An article in the Tampa Bay Times published the day after the recent election commenting on the election results states: “Obama is poised to ignite the ire of the right in coming weeks as he moves to take executive action on immigration, possibly expanding a program that has given legal status to hundreds of thousands of young immigrants known as Dreamers.”

An article in the Tampa Bay Times on November 20, 2014 states: “President Obama on Thursday night unveiled a major executive order on immigration policy, offering temporary legal status to potentially millions of illegal immigrants, along with an indefinite reprieve from deportation.”

Reporters who, whether by ignorance due to unfamiliarity with the law or whether by design, blur the distinction between an illegal alien and an alien with legal status and do a disservice to the public and its understanding of the law when they inaccurately report that an alien who has been granted deferred action has gained legal status in the United States. It improperly elevates the standing of these illegal aliens and creates the perception that since they are already “legal”, they are presently entitled to all of the rights and benefits of lawful residents and citizens and that, at a time in the future if true legalization becomes an opportunity for them, they should be perfunctorily approved, even though they have not been screened for all the disqualifiers and requirements of residency required for all other legalization applicants.

This misconception of legality for illegal aliens even confounds attorneys, legislators, and judges. Supreme Court Judges in California advanced state level amnesty by licensing illegal alien lawyers. The case involved Sergio Garcia, an illegal alien from Mexico who had crossed the U.S. border illegally on at least two occasions. The California Supreme Court held that no state law or public policy should stop Mr. Garcia from obtaining a license to practice law in the state. The unanimous ruling of the Court opined that immigration officials would be unlikely to pursue sanctions against an undocumented immigrant who had been living in the United States for years, had been educated in this country and whose sole unlawful conduct was his presence in this country. The decision went on to state: “Under these circumstances, we conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar.” How can someone without legal status become licensed as a lawyer, whose job entails upholding the law? Mark Krikorian, Executive Director of the Center for Immigration Studies wrote an editorial published on the National Review’s web site stating: “This is only the latest in a series of measures by some jurisdictions to normalize illegal immigration.”

This California decision and its consequences would not have been so troubling if a Dream Act had been duly enacted by Congress and Mr. Garcia had been granted legal status under its provisions. However, this bill did not pass, Mr. Garcia does not have legal status in this country, and, if he has been granted deferred action, his work authorization is only temporary. One can only conclude that the California Supreme Court granted the license to practice law either because they assumed that Mr. Garcia has some de facto or pseudo legal presence or that our federal immigration law and our legalization process is of so little import that it can be deemed to be irrelevant. The current administration’s failure to adequately enforce the immigration law only reinforces their inaccurate views.

The executive branch does not have the legal authority to enact their own laws, amend them to their own specifications, or promulgate regulations which do not have a statutory basis or express Congressional intent. Since the Department of Homeland Security is without authority to promulgate regulations to implement their DACA and amnesty programs, they are left to run these programs based upon “make up the rules as we go along” guidelines which they give precedence over duly enacted statutes and regulations. For example, the guidelines allow illegal aliens who have final removal or voluntary departure orders to ignore those orders, apply for and be granted deferred action, receive employment authorization, and be shielded from removal action. These guidelines and actions conflict with the removal requirements of INA Section 241(a) which require removal of illegal aliens within ninety days of the date the removal order becomes final. Further, the INA does not authorize employment authorization for illegal aliens with final removal or voluntary departure orders. The granting of deferred action to these illegal aliens cannot in any way be justified as an exercise of prosecutorial discretion. Rather, it is done in willful defiance of the orders of the Immigration Court and an abandonment of its statutory responsibility to remove illegal aliens who have had their due process hearings and have been found to be ineligible for relief from removal. Technically, the Department of Homeland Security does not have jurisdiction to do anything but remove an illegal alien who has been issued a final removal order by the immigration court. The immigration court falls under the jurisdiction of the Executive Office of Immigration Review within the Department of Justice. The Department of Homeland Security sends trial attorneys to appear in immigration court and must comply with its orders. The Department of Justice retains jurisdiction over illegal aliens ordered removed until they have been removed. Employees of the Department of Homeland Security do not have authority to rescind or reverse an order of an immigration judge. Those actions must be done by the immigration court or appropriate appellate review authority. The DACA guidelines are not in conformity with the law and should not be given the force and effect of law. The statute envisions the prompt removal of illegal aliens if they cannot establish a legal basis to qualify for relief from removal. The rule of law and our Constitution dictate that the Executive branch enforce the law and this is not accomplished by ignoring the clear mandate of the INA or delaying enforcement of its provisions.

We have a proposed solution if Congress should decide to act upon it. Since the entire DACA program and the President’s executive orders expanding de facto amnesty are premised on and effectuated by the granting of deferred action, we would suggest that Congress amend Section 101(a) of the INA to state: “The term “deferred action” means an act of administrative convenience to the government which gives some immigration cases lower enforcement priority, but does not provide an illegal alien with any entitlement to a change of legal status, lawful presence, employment authorization, a social security card, deferral of placement in removal proceedings, protection from removal, extension of voluntary departure or any other immigration right or benefit not authorized by the INA.” Congress could also defund or rescind the funding for all governmental programs which implement DACA and the expanded amnesty provisions included and envisioned in the President’s executive orders.

No discussion of the misleading semantics would be complete without examining one more term which continuously arises in the public discussion of amnesty issues. The President’s executive orders shielding illegal aliens have been referred to as administrative amnesty or executive amnesty, implying that he has the administrative or executive authority to grant de facto amnesty to as many categories of illegal aliens as he believes to be worthy. In fact, he does not even believe that his actions constitute amnesty at all. Clearly his unlawful, unconstitutional, and ill-advised executive orders should be properly characterized. Let’s just call it illegal amnesty and let it go at that.

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