Obama’s Decree Will Leave Some Criminal Aliens on the Street; Possible New Surge at Border

On November 20, 2014, President Obama announced a long expected series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require an estimated four million – but likely many, many more — currently illegal immigrants to pass a criminal background check before being given work permits, Social Security numbers and required to pay taxes in order to temporarily stay in the US without fear of deportation.

Not surprisingly, praise and scorn over Obama’s unprecedented fiat has split down party lines, although some Democrats have indeed sided with Republicans in excoriating Obama’s action, which they say has usurped the separation of powers between the Executive and Legislative branches of government, and which has constitutional scholars debating the legality of the President’s action, which, in all likelihood, will eventually be settled by the Supreme Court — never mind that Obama repeatedly stated he didn’t have the necessary constitutional authority to do what he’s done.

But while there’s been considerable media and punditry debate for some time about whether Obama would issue the Executive Order that he did, it’s clear the plan to do so had been in the works for quite some time, as evidenced by the Department of Homeland Security (DHS) issuing directives the day after the Executive Order detailing how the Executive Order would be implemented and carried out.

Indeed, DHS stated that Obama asked DHS Secretary Jeh Johnson and Attorney General Eric Holder “to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified … ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources and ensure accountability in our immigration system.”

Putting alien criminals on the streets?

One of the immediate ironies of the Executive Order is how the administration will deal with criminal aliens under its new Priority Enforcement Program (PEP), which is spelled out in the November 20 memorandum, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” from DHS Secretary Jeh Johnson to Immigration and Customs Enforcement (ICE) Acting Director Thomas S.Winkowski; Customs and Border Protection (CBP) Commissioner R. Gil Kerlikowske; US Citizenship and Immigration Services Director Leon Rodriguez; and Acting Assistant Secretary for Policy Alan D. Bersin.

Johnson said “our enforcement and removal policies should continue to prioritize threats to national security, public safety and border security … To promote public confidence in our enforcement activities.”

However, the “the second-highest priority for apprehension and removal” of illegal aliens where “Resources  should be dedicated accordingly” includes illegal “aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of
three separate incidents; aliens convicted of a ‘significant misdemeanor,’ which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence).”

According to Johnson’s decree, “the highest priority to which enforcement resources should be directed [are] aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; aliens apprehended at the border or ports of entry while attempting to
unlawfully enter the United States; aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C.§ 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense  for which an essential element was the  alien’s immigration status; and aliens convicted of an ‘aggravated felony,’ as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.”

Critics said not prioritizing deportation of the second tier classes of alien criminals doesn’t comport with Johnson’s assertion in his memorandum that, “DHS’s enforcement priorities are, have been, and will continue to be … public safety.”

“Just how in the hell does” not prioritizing “going after illegals” who’ve been involved in domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence “constitute DHS’s priority of protecting public safety,” a senior DHS official disgruntled with the administration’s new policy for dealing with illegals angrily exclaimed to Homeland Security Today on background. “Just tell me … how does it?”

“Ain’t that a damn good question?” said another one of the numerous officials and agents of DHS components including Customs and Border Protection, Border Patrol and Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) during background interviews with Homeland Security Today.

Aliens convicted of sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking” are likely involved in or have important ties to “a criminal street gang” or “an organized criminal gang” (the aliens DHS has prioritized as their top concerns), but who very likely have some sort of direct ties to Mexican transnational criminal organizations (TCOs) or gangs working for them in the US which are involved in priority one offenses like human trafficking – including the female sex trade – narco-trafficking and other TCO-gang operations, ICE HSI special agents candidly explained to Homeland Security Today.

Others agreed, including members of the Drug Enforcement Administration (DEA), FBI, southwest border state and regional fusion centers and departments of public safety intelligence units who also spoke to Homeland Security Today on condition of anonymity or on background.

“These second priority criminal aliens are just as much of a threat – if not more so – to public safety as those who’ve been given top priority,” one of the HSI agents stressed, “adding, “The whole thing makes no damned sense whatsoever to me! And ‘aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States,’ well, hell, how do you think the second priority criminal aliens got here in the first place?”

“Sure,” aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security, “should be a top priority, the HSI agent continued, “but just how many of these aliens are running around the streets? A lot less, I suspect, than the second priority [aliens] who pose what I consider to be a greater immediate threat to public safety in general.”

Disconcertingly, the agent said he’s hardly alone. Among the (HSI) special agents “I work with, we’re all of the same sentiment.” He said he suspects this new policy is going to result in a quickly “creeping” morale problem for DHS, especially if second priority aliens continue to commit violent crimes “and end up killing people and are found trafficking drugs for the cartels. This will become a huge problem for the department and administration if that happens.”

Rep. Bennie G. Thompson (D-Miss.), ranking member of the House Committee on Homeland Security, said the President’s action will allow “officials to focus limited resources on the small handful of individuals who pose a public safety or security threat.”

Last May, a Center for Immigration Studies report disclosed ICE released more than 36,000 convicted criminal aliens in deportation proceedings in Fiscal Year (FY) 2013. The released aliens had 88,000 convictions among them, including 16,070 drunk or drugged driving convictions, 9,187 dangerous drug convictions, 426 sexual assault convictions, 303 kidnapping convictions and 193 homicide convictions (including one willful killing of a public official with gun).

“This enumeration of FY 2013 criminal aliens freed and the criminal convictions tied to these individuals was prepared by ICE in response to congressional inquiries following a report published by the Center for Immigration Studies” that showed ICE officers declined to bring immigration charges in 68,000 cases of criminal aliens they encountered in 2013, said Jessica M. Vaughan, the author of the report and Director of Policy Studies at the Center for Immigration Studies.

“It is important to recognize,” she said, “that the 36,007 criminal aliens counted in this document are a different set of cases from the 68,000 releases reported earlier. The 36,007 criminal aliens counted here are aliens who were being processed for deportation and were freed while awaiting the final disposition of their cases, or afterwards. The 68,000 releases were cases of alien criminals encountered by ICE officers, usually in jails, but who were let go in lieu of processing them for immigration removal charges in that year.”

For its part, ICE responded saying many of the individuals released were done so under orders from US courts. ICE said 75 percent of the people released whohad murder convictions were “mandatory releases.” Others released could not be returned to their home country and could not be detained indefinitely in ICE’s custody, the agency said. ICE further said the released undocumented aliens were monitored via GPS, telephone and in-person visits.”

“Others, typically those with less serious offenses,” ICE said, “were released as a discretionary matter after career law enforcement officers made a judgment regarding the priority of holding the individual, given ICE’s resources, and prioritizing the detention and removal of individuals who pose a risk to public safety or national security.”

However, “The vast majority of these releases from ICE custody were discretionary, not required by law (in fact, in some instances, apparently contrary to law), nor the result of local sanctuary policies,” Vaughan said.

Killing off Secure Communities

Under its rewriting of immigration laws, the Obama administration is also killing off the Secure Communities program and replacing it with the Priority Enforcement Program “that will closely and clearly reflect DHS’s new top enforcement priorities,” stated the "Executive Action: End Secure Communities and Replace it with New Priority Enforcement Program" directive.

“The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody,” DHS’s implementation directive stated. “The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s ability to arrest, detain, and remove individuals deemed threats to national security, border security or public safety."

“The president … eliminated a highly successful program that takes criminal illegal immigrants off our streets and assists in removing them from the country,” said Rep. Lamar Smith (R-Texas). “The Secure Communities program was put in place in 2008 as a partnership between local law enforcement and Immigration and Customs Enforcement. Despite a lack of support from this administration, the program has been used to remove almost 400,000 convicted criminal aliens. Local officials, many in my home state of Texas, have used the Secure Communities program to protect Americans and keep our communities safe. Those identified under the program are often repeat offenders and have committed crimes such as theft, assault, drunk and drugged driving, and even murder.

“The president cannot claim that he will prioritize deportation of felons while scrapping a successful program designed to do just that.”

Smith noted that the Secure Communities program uses an already-existing federal-information sharing partnership between ICE and the FBI that helps to identify criminal aliens so that ICE can take enforcement action. To date, over 375,000 convicted criminal aliens have been removed as a result of Secure Communities.

Few details have been made available regarding and how the Priority Enforcement Program would differ from Secure Communities, Smith’s office said.

“The decision to end Secure Communities and to stand up a new Priority Enforcement Program has set in motion the possibility for some very significant changes that have been long overdue,” stated American Immigration Council Executive Director Ben Johnson. “The decision to focus their law enforcement efforts on those who pose a demonstrable risk to national security and those who have been convicted of specifically enumerated crimes is an important step forward in focus our attention on real threats to communities. The challenge for agency will be to ensure that these policies are embraced and adhered to by agents in the field by backing them up with training and support, but also oversight and accountability.”

Constitutionality questioned

On December 2, House Committee on Homeland Security Chairman Michael McCaul (R-Texas) will convene a hearing on the administration’s actions.

“The president’s decision to bypass Congress and grant amnesty to millions of unlawful immigrants is unconstitutional and a threat to our democracy,” McCaul said, noting, “There is no doubt our immigration system is broken and needs to be fixed, but this does not mean the president has the authority to act without Congress.”

McCaul said, “History has proven that unilateral action on immigration simply perpetuates a cycle of illegal entry into this country. This was true under the 1986 amnesty and it has been true under [the] Expand Deferred Action for Childhood Arrivals (DACA) Program, which enticed 60,000 unaccompanied children to make the perilous journey across our southern border this summer. We will see a wave of illegal immigration because of the president’s actions, and in no way is the Department of Homeland Security prepared to handle such a surge. Furthermore, the president knows any immigration reforms will be ineffective as long as our border remains insecure.”

“As chairman of theCommittee on Homeland Security, I will use every tool at my disposal to stop the president’s unconstitutional actions from being implemented, starting with this oversight hearing,” McCaul declared. “Sec. Johnson will have the opportunity to answer the American people’s questions, including how DHS will secure our border and prevent additional illegal immigration.”

McCaul’s Senate counterpart for a few more months, Senate Committee on Homeland Security and Governmental Affairs Chairman Sen. Tom Carper (D-Del.), had a different take, saying, “A year and a half ago, the Senate overwhelmingly approved bipartisan comprehensive immigration reform legislation that would modernize our broken immigration system, strengthen our borders and ports of entry, and enhance our national security in a manner that is practical, tough and fair. While it isn’t perfect, the Senate’s bill, which I championed, is a significant improvement over the status quo. It also does what the voters told Congress to do: it grows our Gross Domestic Product by as much as five percent over the next 20 years and reduces our budget deficit by nearly a trillion dollars over the next 20 years.”

Bipartisan critics, however, say such growth and diminishment of the budget deficit is questionable for panoply of reasons, especially the financial burden legitimizing at least 4 million illegals will put on states’ budgets for schools, healthcare – including Medicare –unreimbursed emergency room surges, infrastructure, social benefits, etc.

"An amnesty policy will be costly to taxpayers at the local, state and federal levels. An administrative amnesty would be the latest example of Washington benefiting some (illegal immigrants) at the cost of others (lawful residents)," wrote Derrick Morgan, vice president of the Institute for Economic Freedom and Opportunity at The Heritage Foundation, and David Inserra, research Associate for Homeland Security and Cybersecurity at the Douglas and Sarah Allison Center for Foreign and National Security Policy of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy at The Heritage Foundation in August.

“Unfortunately, the House of Representatives did not follow the Senate’s lead and has left this critical issue unresolved for 17 months,” Carper said. “Even more disappointing, the leadership in the House has stated over and over again that they will not act on the Senate bill.”

But it’s not necessarily that the House refused to budge on the Senate’s bill rather than the Democratic Senate also refused to budge in working on compromises with House Republicans’ concerns about the Democrat’s bill.”

During the crisis on the border this past summer, the House passed the Asylum Reform and Border Protection Act (HR 5137) that would end” many of the Obama administration’s policies that encourage Central Americans to come to the United States, such as weak standards for asylum claims that enable the administration’s rubberstamping of fraudulent applications and policies that prevent Border Patrol agents from accessing federal lands along the border. Additionally, the bill makes targeted changes to current law, which has worsened the crisis at the border.”

Nevertheless, Carper said, “The President is rightly frustrated that Congress has failed to send him comprehensive immigration reform legislation he can sign into law. In fact, the House has failed to debate immigration reform at all, or offer any alternatives of its own to the work the Senate has done. Their inaction on such an important issue is inexcusable, and I share the President’s frustration. Given Congress’ inability to act, it is understandable for the President to examine ways the administration can legally address the current needs of our country and the realitiesof the estimated 11 million undocumented people living in the shadows.”

“It’s both perplexing and alarming that President Obama has decided to move forward with executive actions that he once said he didn’t have the constitutional power to take,” said House Committee on the Judiciary Committee Chairman Bob Goodlatte (R-Va.). “The President’s decision to recklessly forge ahead with a plan to unilaterally change our immigration laws ignores the will of the American people and flouts the Constitution.”

“The American people are deeply concerned about the direction of our country and went to the polls earlier this month to overwhelmingly reject the Obama administration’s policies,” Goodlatte said. “Rather than listen to the American people and change course, President Obama is going rogue, doubling-down and driving full speed towards a constitutional crisis. By assuming legislative power and ignoring the limitations placed on his authority, President Obama threatens to unravel our government’s system of checks and balances and imperils individual liberty.”

“Additionally,” Goodlatte said in a statement, “the President’s shortsighted actions further setback any chance of enacting immigration reform. The debate in Congress over the past two years has shown that there is a willingness and need to reform our nation’s immigration system. While there are varying opinions on how to amend our immigration laws, one thing is clear: the President does not have the authority to change our immigration laws by executive decree. It’s disappointing that President Obama has refused to work with the new men and women Americans elected to represent them in Congress. Since the President has acted outside the confines of his authority, I will work with my colleagues in both the House and the Senate to stop the President’s unconstitutional actions from being implemented.”

Goodlatte and McCaul sent a joint letter to Obama “demanding he abandon his unconstitutional plan to act unilaterally on immigration.”

South Carolina Rep. Jeff Duncan said, “What the President has done is unprecedented, unconstitutional and an affront to the American people. In addition to poisoning the well and making it almost impossible to work together on other issues, the President’s actions have created a constitutional crisis that our founding fathers had hoped to avoid. Presidents cannot make law on their own. Regardless of how one feels about this issue or any other, I would hope that we could all come together and agree that the precedent set by this President is dangerous.”

“My oath of office to protect and defend the Constitution of the United States is clear,” Duncan said. “It requires me to use every power at my disposal to make sure this type of action is stopped, condemned and prevented from ever happening again. One of the most important and effective ways Congress can stop this is by blocking funding. Federalist 58 states, ‘This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.’ It is the prerogative of Congress to deny funding to executive proposals in which they believe are unconstitutional or damaging to the country. Presidents have frequently signed legislation that contained such funding restrictions. Democrats such as Senator Carl Levin of Michigan have reaffirmed that restricting funding is a proper role of the legislative branch by stating it ‘(is) not bringing down the government. (It’s) a fairly traditional, targeted approach to make a policy point.’”

“The President’s actions seem to have more to do with politics than policy,” Duncan continued, adding, “The President’s not considering the fact that he’s hurting Americans from all walks of life who are still struggling to find jobs. The President does not seem to care that this action will make our immigration system worse by incentivizing others to come here illegally.”

“I expect the President will threaten to veto any attempt from Congress to stop this unilateral action, and then blame Congress for acting ‘irresponsibly’ if the result is more gridlock,” Duncan predicted. “If the President wanted to fix our broken immigration system, he could start by securing the border and enforcing the laws already passed by Congress. But make no mistake, what the President is doing will make our immigration system worse.”

“But let me be clear: this executive action is not the final word on this issue,” Carper stated. “It is just a temporary Band-Aid that does not fully or permanently address the deep-rooted problems with our current immigration system, or the violence and lack of economic opportunity in Central America that led to a humanitarian crisis on our southern border this past summer” — a Central American problem observers have said isn’t necessarily the fault of the United States.

A new surge?

It’s widely agreed that the surge of unaccompanied children and families into the Rio Grande Valley in Texas had much more to do with human traffickers promoting false information that anyone south of the US border that could get to the US would be allowed to stay.

Homeland Security Today reported that the “significant increase” in illegal aliens from Central America arriving at the US border – primarily in the Rio Grande Valley of Texas – “since mid-2013 is most likely driven by traditional migration factors exacerbated by misperceptions of recent US immigration policies among migrants,” according the July 7 El Paso Intelligence Center (EPIC) intelligence assessment, “Misperceptions of US Policy Key Driver in Central American Migrant Surge.”

And the “flow to the border will remain elevated until migrants’ misperceptions about US immigration benefits are changed,” said the report, which was prepared by EPIC’s Criminal Threats Unit, Strategic Analysis Section.

The EPIC report also highlighted that, “These misperceptions are likely fueled by human smugglers and Central American media — providing deliberate, errant or unwitting reporting to migrants on the Deferred Action for Childhood Arrivals memorandum and comprehensive US immigration reform.”

The administration’s latest reinterpretation of immigration laws are expected to exacerbate the problem in the coming year. Even DHS Secretary Johnson said while his department and the White House were working on Obama’s Executive Order that the US would likely experience another wave in illegal immigration.

“I’m concerned about the possibility of another rise in illegal migration,” Johnson said in a speech at the National Press Club sponsored by the Democratic group NDN.

DHS officials who spoke to Homeland Security Today on condition of anonymity or background agreed, with more than a few saying the surge could be worse than during the 2013-2014 exodus to the US, when little known DHS mass migration contingency plans weren’t activated for unexplained reasons.

DHS officials and experts are expecting a new surge. Only time will tell. Only time also will tell whether criminal aliens the Obama administration is less interested in dealing with will go on to commit violent crimes.

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