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Immigration Daily

Comment: DREAM - Yesterday, Today and Tomorrow


Immigration Daily June 20, 2012

In the Editorial Comment, we examine the genesis of DREAM relief, draw your attention to a new article on DREAM deferred action today by Gary Endelman and Cyrus Mehta, and point out a possible fatal problem in obtaining DREAM relief.

Genesis: Victory has many parents, while defeat is an orphan. True to this aphorism, several individuals and groups have claimed credit as instigators of the announcement of immigration relief to DREAMers by the President last Friday. In the interests of historical accuracy, we state below the two causes of the President's announcement - one of occurrence and one of substance. The announcement occurred purely as a political reaction by the President's political staff to the impending bill by Senator Rubio, Republican of Florida, which would have granted substantially the same relief, albeit through a legislative vehicle which was destined never to pass the Republican-controlled House. Such a bill would have had, by Republican calculation, a dual benefit - it would have ensured no actual benefits were delivered, since the bill would never clear the House, thus keeping intact the Republican coalition encompassing both pro-immigration and anti-immigrant elements, while still ensuring full credit to the Republican party for a novel solution on immigration matters, to the detriment of the Democratic party claim of a pro-immigrant agenda. The President's announcement completely check-mated the Republican plan, and has confounded Mr. Romney, putative Republican candidate for President, to such an extent that he continues to duck repeated questions on the merits of the President's plan for DREAMers. Now, as to the substance of the announcement. We are proud to say that the intellectual origins of deferred action as the specific legal vehicle for immigration relief, including for DREAMers, were several articles by Gary Endelman and Cyrus Mehta on the subject over the last several years, some of which are linked to in their latest article, written today, which appears below. However, the real intellectual pedigree is even older, starting with Dinesh Shenoy in his article as early as 2005 wherein he argued for a slight amendment in the INA to deal with the ever-increasing quota backlogs for Indian and Chinese employment-based adjustees. It was Gary Endelman who ran with the ball that Mr. Shenoy set in motion and first floated the original idea of using executive authority for obtaining results otherwise sought through CIR-type legislative vehicles, and it was in several articles with Cyrus Mehta that this idea was fleshed out. We have reason to believe that Mr. Endelman's and Mr. Mehta's articles were brought to the attention of two key people in the Obama administration, one at DHS, and one at the White House. These two people had key roles in producing various alternatives for the President's consideration should he make the political decision to move forward on immigration (and some of which ended up in the leaked Mayorkas memo of a couple of years ago), one of the alternatives was, of course, deferred action, which the President ultimately acted on.

New article: In their article today, Mr. Endelman and Mr. Mehta continue their ground-breaking intellectual tradition in arguing that Arrabelly and Yerrabelly type analysis be used for beneficiaries of deferred action, and for parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5) for the same beneficiaries. They further write "We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday's memorandum" no doubt to forestall their many detractors, including the President himself, who a year ago argued that he did not have the authority which he exercised last week.

Potential Fatal Problem for Deferred Action: Be the historical record as it may, lets look forward. What would it take for DHS to deliver on the President's promises, and to go beyond the empty words that the heads of ICE, USCIS and CBP offered in a stakeholder engagement on Monday this week? The obvious elephant in the room is that it is a tall administrative duty to process nearly a million benefit applications in a few months. Many people have proposed innovative solutions, including in today's article by Mr. Endelman and Mr. Mehta, where they write: "In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently, all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President's initiative of last Friday does not become a dead letter." We urge our readers to use such persuasive abilities and connections that they may possess to put forth this and other creative ideas to the agencies involved so that DREAMers can realize in their own lives the dream that the President has made vivid to all Americans through his Rose Garden address.


http://www.ilw.com/immigrationdaily/digest/2012,0620.shtm#Comment