Napolitano Defends Deferred Action on Immigration Enforcement for Qualified Young Illegal Aliens
By: Mickey McCarter 07/20/2012 ( 9:30am)
Homeland Security Secretary Janet Napolitano assured lawmakers Thursday that deferred action for some qualified young illegal aliens would help the Department of Homeland Security (DHS) focus its limited resources on criminal threats.
Moreover, DHS would implement the process of deferring immigration enforcement among some illegal aliens aged 30 or younger carefully to ensure that it is not subject to fraud and that it does not result in sanctuary for criminal aliens, Napolitano told a hearing of the House Judiciary Committee.
Although the hearing marked the 40th time Napolitano has testified before Congress in her tenure as homeland security secretary, it marked her first appearance since her memorandum June 15 granting deferred action for a two-year period to young illegal aliens who committed no felonies or major misdemeanors and applied for the program.
The two-year period is continually renewable so long as the immigrant does not commit any such crimes, Napolitano said.
DHS officially will begin accepting applications from young illegal aliens seeking to defer removal or other enforcement actions on Aug. 15, Napolitano explained. The department hopes to finalize guidelines for the process by Aug. 1, she continued, although she acknowledged that DHS already has deferred action on about 1,000 young illegal aliens that qualify under the characteristics of the overall program.
Napolitano described the deferred action for qualified young illegal aliens as a natural outgrowth of how DHS has set immigration enforcement priorities. In 2010, DHS set broad priorities to pursue criminal aliens and repeat migration offenders. In 2011, it clarified that immigration prosecutors and agents could exercise prosecutorial discretion to suspend administratively low priority enforcement cases against illegal aliens who posed no national security or public safety threat.
The June 15 announcement specifically narrowed DHS focus further by providing relief for young illegal aliens who were brought to the United States by their parents under the age of 16 and who have lived in the country continuously for five years or more. These young aliens generally do not know their native countries and fit the profile of students who would be provided with permanent relief under the Development, Relief and Education for Alien Minors (DREAM) Act championed by Sen. Dick Durbin (D-Ill.)
Napolitano denied DHS was pressured into the decision by the White House and further objected to characterizations that the timing of deferred action was political in nature, given the upcoming presidential election and the Democratic Party’s efforts to appeal to Latino voters.
Rep. Lamar Smith (R-Texas), committee chairman, expressed skepticism that DHS would not issue further orders that would effectively provide a class of DREAMers with permanent residency and eventually citizenship, usurping the authority of Congress to pass or withhold such laws.
DHS may plan to enact an advance parole program, whereby a class of people such as DREAMers under deferred action would essentially become permanent US residents, Smith said. Providing such relief to an entire class of people eventually would provide them with citizenship counter to the will of Congress.
Napolitano assured him that DHS would not enact a blanket policy to do so, but that individual cases of qualified illegal aliens may be subject to advance parole.
DHS still was in the throes of hammering out the exact process by which young illegal aliens would qualify for deferred action, Napolitano said, expressing doubt that they would have to submit a certified school transcript, despite Smith’s insistence that it would be a good idea. Qualifying illegal aliens would have to prove their residency, and the guidelines stipulate they should be in enrolled in, or should have graduated from, high school. (Alternatively, they could serve honorably in the US military.)
Illegal aliens already identified by immigration authorities would be able to submit applications for deferred action after Aug. 15, Napolitano said. They would receive an acknowledgement that their applications are complete and a number to track the status of their applications. Once approved, DHS would enter those now legal aliens into a system to track their legal status.
Not everyone who applies for deferred action will receive it automatically, Napolitano said, but rather DHS would decide the matter on a case-by-case basis, consistent with its immigration enforcement authority. Those who receive deferred action status will be able to seek work authorization to hold jobs legally while they remain in the United States.
DHS agencies would be careful to ensure the process is not subject to fraud. It would vet applicants thoroughly, Napolitano said, and educate potential applicants through outreach to student groups as well as faith-based and advocacy organizations.
A fee charged for the deferred action application would ensure the process does not pose an extra burden on taxpayers, Napolitano said.
Smith lamented that the DHS policy “ignores the rule of law that is the foundation of our democracy.”
“In exercising its responsibility to see that the laws are faithfully executed, the executive branch does have the power of prosecutorial discretion on a case-by-case basis. But this authority cannot be used to systematically dismantle our immigration laws,” he stated.
Napolitano maintained DHS was acting within its authorities under Article 2, Section 3 of the Constitution. Moreover, the Supreme Court acknowledged federal agencies have broad discretion in the application of immigration enforcement procedure as recently as the ruling last month in the United States vs. Arizona, she said.
Cutting the backlog of immigration enforcement cases that do not pose a public safety or national security threat would speed the ability of immigration courts to deal with those who do pose a threat, Napolitano continued. In many current cases, serious offenders are not receiving court dates until 2018 or beyond, leaving them within the United States unnecessarily for years due to the case backlog.
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