Texas’ Promise Will End Obama’s DACA Amnesty, Says Immigration Lawyer

AP/Ross D. Franklin

Former President Barack Obama’s 2012 ‘DACA’ quasi-amnesty will be shut down or frozen if Texas and nine other states implement their June 29 promise to expand their successful lawsuit against Obama’s 2014 quasi-amnesty, says a prominent immigration attorney.

“If they include it in the lawsuit in Texas, we all know how this goes,” attorney David Leopold said in a Facebook video late Thursday, June 30. Texas “Judge [Andrew] Hanen has already ruled that [the 2o14 ‘DAPA’ amnesty] violated the law, and he’s going to do the same thing to DACA.”

President Donald Trump has allowed the DACA program to continue despite his campaign promises to end the amnesty.

But the Texas announcement may be a huge gift to Trump because it could force Democrats to accept pro-American immigration reforms in exchange for a formal legal amnesty of the younger illegals, whose numbers may reach 1 million.

The reforms could include mandatory use of the E-verify system to block company hiring of illegals, a reduction to the annual inflow of 1 million legal immigrants and 1 million contract workers (such as the H-1B white-collar professionals), plus funding for the border wall. Trump has already sketched out plans for a “merit-based” reform that could help raise the productivity and income of Americans.


The new development was made public late Thursday when Texas Attorney General Ken Paxton sent a letter to Attorney General Jeff Sessions saying:

We respectfully request that the Secretary of Homeland Security phase out the [2012] DACA program … Just like [the 2014] DAPA, DACA unilaterally confers eligibility for work authorization and lawful presence without any statutory authorization from Congress.

The 10 Attorneys General also set a September 5 deadline for when they will extend their successful lawsuit against the DAPA amnesty to include the 2012 DACA amnesty.

When he was a Senator, Sessions led the opposition to Obama’s quasi-amnesties.

DAPA is Obama’s 2014 semi-amnesty of roughly 4 million illegal-immigrant parents of U.S.-born children. Texas Judge Hanen blocked the amnesty for violating U.S. laws, and the new administration announced this June it would formally kill off Obama’s leftover amnesty effort.

DACA is Obama’s 2012 amnesty for young illegals who were brought into the United States as children. Since 2012, it has provided roughly 765,000 illegals with two-year work permits and the ability to get Social Security cards. The 2012 DACA amnesty has survived one lawsuit, but it is founded on the same legal claim as Obama’s defunct DAPA amnesty. The program is still growing, and it may reach one million beneficiaries. 

Hanen will stop DACA if he the lawsuit is expanded, predicted Leopold. “My guess is that Judge Hanen, in fact, will put a hold on DACA … at a minimum, he would stop or restrain renewal of [work permits provided by] DACA.”

Leopold urged Democrats to pass a law legalizing the DACA illegals. “This is another stark reminder that DACA is tenuous … it is not law, and it could be withdrawn at any time,” he said, adding “we have to get legislation passed.”

Leopold said the Texas promise is “vicious … [and] a special level of evil,” but he refused to suggest any political concessions that Democrats could trade to win public support for an amnesty.

He did not suggest that Democrats could agree to reduce the annual inflow of 1 million salary-cutting contact-workers into the United States, or the annual inflow of 1 million legal immigrants, even though the inflow has a huge economic impact on the 4 million Americans who turn 18 each year. Nor did Leopold suggest an offer of new rules to prevent illegal immigrants from getting hired, or even suggest new penalties for companies which hire illegals.

As an immigration lawyer prominent in the immigration industry, Leopold and his peers are paid by U.S. companies to help import cheap labor to undercut American workers. They are also paid by foreigners seeking the huge valuable privilege of living and working in the United States, no matter the cost of Americans. Any curbs on immigration, or any reduction in the complexity of immigration law, will reduce the revenues of his industry.

Leopold works closely with America’s Voice, which is a progressive group which supports amnesty and greater immigration, regardless of the resulting civic strife or economic impact on ordinary Americans. 

The union-backed United We Dream advocacy group also opposes the Texas promise.

Obama’s two quasi-amnesties are based on the legal claim that agencies can stop enforcing Congress’ laws en-masse if officials claim the legal circumstances of each beneficiary is carefully reviewed.

A 2015 appeals court decision by two judges concluded that Obama’s DACA amnesty was fatally flawed, in part, because there was no individual review for each potential beneficiary of the amnesty, which provides work-permits and Social Security cards to illegals.

Judges in the DAPA case noted there is little or no case-by-case review of amnesty awards to the beneficiaries in the DACA amnesty. A three-judge panel, for example, found in 2015 that then-DHS Secretary Jeh Johnson further instructed that:

Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were “merely pretext” because only about 5% of the 723,000 applications accepted for evaluation had been denied, and “[d]espite a request by the [district] [c]ourt, the [g]overnment’s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria . . . .”  The finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria.”

In a footnote to the November 2015 judgment, the judges also noted that Obama’s deputies at DHS could not cite any members of the class who were denied the benefit once they filled the application form correctly, saying:

USCIS could not produce any applications that satisfied all of the criteria but were refused deferred action by an exercise of discretion… (“[A]ll were denied for failure to meet the criteria or ‘rejected’ for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud.”).” Given that the government offered no evidence as to the bases for other denials, it was not error―clear or otherwise―for the district court to conclude that DHS issued DACA denials under mechanical formulae.

In his June 15 statement announcing the end of DAPA, Department of Homeland Security Secretary John Kelly highlighted the lethal legal flaw in DACA when he said DAPA was indefensible in court and noted “I remind our officers that (1) deferred action, as an act of prosecutorial discretion, may only be granted on a case-by-case basis.”

Many polls show that Americans are very generous, they do welcome individual immigrants, and they do want to like the idea of immigration. But the same polls also show that most Americans are increasingly worried that large-scale legal immigration will change their country and disadvantage themselves and their children.

This current annual flood of foreign labor spikes profits and stock values by cutting salaries for manual and skilled labor offered by blue-collar and white-collar employees. It also drives up real estate prices, reduces high-tech investment, increases state and local tax burdens, hurts kids’ schools and college education, and sidelines at least 5 million marginalized Americans and their families.


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