With Congress gridlocked on an immigration bill, the Obama administration is considering using a back door to stop deporting many illegal immigrants - what a draft government memo said could be "a non-legislative version of amnesty."
The memo, addressed to U.S. Citizenship and Immigration Services Director Alejandro Mayorkas and written by four agency staffers, lists tools it says the administration has to "reduce the threat of removal" for many illegal immigrants who have run afoul of immigration authorities.
"In the absence of comprehensive immigration reform, USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear," the staffers wrote in the memo, which was obtained by Sen. Charles E. Grassley, Iowa Republican.
The memo suggests that in-depth discussions have occurred on how to keep many illegal immigrants in the country, which would be at least a temporary alternative to the proposals Democrats in Congress have made to legalize illegal immigrants.
Chris Bentley, a USCIS spokesman, said drafting the memo doesn't mean the agency has embraced the policy and "nobody should mistake deliberation and exchange of ideas for final decisions."
"As a matter of good government, U.S. Citizenship and Immigration Services will discuss just about every issue that comes within the purview of the immigration system," he said in an e-mail statement. "We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges."
He said the Homeland Security Department "will not grant deferred action or humanitarian parole to the nation's entire illegal immigrant population."
The memo does talk about targeting specific groups of illegal immigrants.
Mr. Grassley said it confirms his fears that the administration is trying an end-run around Congress.
"This memo gives credence to our concerns that the administration will go to great lengths to circumvent Congress and unilaterally execute a backdoor amnesty plan," Mr. Grassley said.
The memo acknowledges some of the tools could be costly and might even require asking Congress for more money.
At one point, the authors acknowledge that widespread use of "deferred action" - or using prosecutorial discretion not to deport someone - would be "a non-legislative version of 'amnesty.' "
The authors noted several options for deferred action, including targeting it to students who would be covered by the DREAM Act, a bill that's been introduced in Congress.
In testifying to the Senate Judiciary Committee on May 11, Mr. Mayorkas first said he was unaware of discussions to use these kinds of tools on a categorical basis, then later clarified that officials had talked about expanding the use of those powers.
"I don't know of any plans. I think we have discussed, as we always do, the tools available to us and whether the deployment of any of those tools could achieve a more fair and efficient use or application of the immigration law," he said.
He acknowledged, though, that he was not aware that those powers had ever been used before on a categorical basis.
Sen. John Cornyn, the Texas Republican who queried Mr. Mayorkas on the subject, warned him against pursuing that strategy.
"I think it would be a mistake for the administration to use administrative action, like deferred action on a categorical basis, to deal with a large number of people who are here without proper legal documents to regularize their status without Congress' participation. I will just say that to you for what it's worth," Mr. Cornyn, the ranking Republican on the Senate Judiciary immigration, border security and citizenship subcommittee, told Mr. Mayorkas.
"The American public's confidence in the federal government's ability and commitment to enforce our immigration laws is at an all-time low," Mr. Cornyn said in a statement. "This apparent step to circumvent Congress – and avoid a transparent debate on how to fix our broken immigration system – threatens to further erode public confidence in its government and makes it less likely we will ever reach consensus and pass credible border security and immigration reform."
After reports earlier this year that the agency was working on these sorts of plans, Senate Republicans, led by Mr. Grassley, have sent letters to President Obama and Homeland Security Secretary Janet Napolitano asking for details.
In one letter, the senators warned the president against making an end-run around congressional authority to write immigration rules, and asked for Mr. Obama to promise that he would not use the rules to grant mass pardons.
Rosemary Jenks, government relations manager for NumbersUSA, an organization that advocates for stricter immigration limits, said the memo is "an outrageous usurpation of congressional authority. It is unconstitutional, and a slap in the face to the American people."
She said that the memo could explain why the push for an immigration bill has faltered in Congress.
"This makes sense of the fact that [Senate Majority Leader Harry] Reid and [House Speaker Nancy] Pelosi and Obama are sitting back calmly content with not moving immigration reform this year - because they know Obama is trying to take care of it for them, without Democrats having to be tied down to a vote before the election," she said.
On the other side of the political spectrum, immigrant rights groups have demanded that Mr. Obama halt deportations until he secures a broad legalization bill from Congress - legislation that supporters call "comprehensive immigration reform" because it would tackle enforcement, some aspects of legal immigration and the status of illegal immigrants at the same time.
Two senators earlier this year wrote asking the administration to use its powers to stop deporting students who might be eligible for the DREAM Act, which would allow illegal immigrant college students brought to the U.S. at a young age to gain legal status. The legislation has not been passed by Congress.
Mr. Obama has rejected halting deportations, but his administration has been more careful about whom it pursues.
According to new figures from Immigration and Customs Enforcement, the administration has stepped up its efforts to deport illegal immigrants convicted of crimes, but removal of "non-criminal" illegal immigrants has slowed so far in fiscal 2010.
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