Lucas Guttentag Appointed Senior Counselor at USCIS Despite Career Devoted to Hamstringing Immigration Enforcement and Controls

DHS[1]His Appointment to USCIS Should Raises More Questions about Obama Intentions

The polls are in and it doesn’t look good. Public approval for the president is at an all time low, and folks now trust Republicans more than Democrats to handle immigration issues by large margins. Meantime, deportations are plummeting because the Obama Administration does not want to enforce the law. 

To build public confidence in the credibility of the immigration system, the administration should be working to hire people with impeccable professional credentials free of bias or ideological taint. No such luck in the case of the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security.

Consider the hiring of Lucas Guttentag – just about the last person who could be counted on to ensure a robust application of immigration law, scrutiny of immigration applications and the facts behind them.  Guttentag has just been named as a “senior counselor” to the newly-confirmed head of USCIS Leon Rodriguez – and in doing so, the partisan Rodriguez has chosen a man whose entire career has been spent working to degrade and decimate interior U.S. immigration law enforcement. Guttentag is the Founder and former Director of the ACLU’s Immigrants Rights Project.

Guttentag is a pleasant fellow and one can recognize his willingness to forgo the money to be made in Big Law to spend his career in public work. But….just what has he been up to?

Over the years, Guttentag has been a fixture in one class action suit after another, challenging in federal courts nearly every attempt by Congress to try to rationalize the immigration system and make the law enforceable. The goal? Make it as hard as possible to the government to remove ineligible aliens. For example, he was front and center working to prevent both the State of Arizona and Hazelton, Pennsylvania, from enacting laws designed to discourage illegal immigration. He has fought the government’s ability to detain illegal alien criminals who won’t be accepted by their home countries and worked to free enemy combatants who are United States citizens. Guttentag challenged a wide range of state efforts to preclude illegal aliens from access to public benefits, fought to prevent states from helping verify an alien’s status prior to providing state benefits, and challenged Congress’ mandatory detention requirements. Over the years, Guttentag has sought to ensure asylum provisions are unworkable and can be used to delay deportation, litigated to limit the ability of both the federal government and states to remove criminal aliens, and sought to limit even a state’s ability to ensure that employers use the national E-verify system.

In short, Guttentag’s entire career has been exclusively calculated to try to limit the government’s ability to manage immigration flows.  He has challenged nearly every procedural effort to rationalize and streamline immigration adjudications to make them effective in actually removing criminal and illegal aliens.

And because of “fee shifting” statutes, we taxpayers have actually subsidized this non-stop ACLU attack on the immigration control system.

Many times, these class action lawsuits produce settlements with the government that functionally result in a breakdown in law enforcement and undermine the intent of Congress.  The reason? Neither courts nor bureaucrats who approve these settlements have any real stake in the outcome. This is the result when there is a separation between authority and responsibility.

Consider the  Texas School Case, Plyler v. Doe, as a case in point. Although it did not involve Guttentag, this suit brought by like-minded foes of immigration enforcement produced a stunning Supreme Court mandate that all illegal alien students get taxpayer-financed public education. When the Supreme Court issued this decree, it forced an unending taxpayer commitment to pay for millions upon millions of future illegal alien pupils with no suggestions on how to pay. A quick glance at public education in America today and the newer demands for in-state college tuition for illegal aliens tells you all you need to know.

Plyler was part of a continuing campaign by ACLU-related entities to eliminate any state role in verifying immigration status before providing state benefits. The effort to encourage illegal immigration through state accommodation and benefit has been a key part of the advocates’ efforts to destroy U.S. immigration enforcement. And Guttentag has been front and center for decades.

Guttentag is happy to spend your money. He believes states are free to accommodate, reward and encourage illegal immigration, but these same states cannot even seek cooperation from the federal government to ensure effective immigration law enforcement.  The litigious and ideological Guttentag, who comes out of Berkeley and the National Lawyers Guild, simply claims that all interior immigration enforcement has the tendency to produce “racial profiling,” a term practically invented by the ACLU.  This claim has been the convenient mask behind the ACLU’s agenda to render our immigration laws unenforceable.  The result? A massive illegal alien population in the United States in 2014.

Looking over the list of cases Guttenberg has been involved in, it is no exaggeration to say he has helped to anchor nearly every challenge to effective immigration enforcement of the past 30 years. His work has short-circuited any effective effort by Congress to streamline deportations into a workable system or by any state or local government attempt to conserve taxpayer dollars for those who have a right to be in the country.

Why was he appointed to help USCIS? And why would Guttentag – who enjoys a comfortable late-career job as a law professor – join the Obama Administration at this late date? No doubt he’s a key man to plan Obama’s massive immigration power grab. No doubt he’ll do a good job. No illegal alien will be left behind. Only the civil rights of the American people will be thrown over – again! USCIS must not lose all credibility with the American people, but sadly this is where we are heading.

When Congress first sought to split up the old Immigration and Naturalization Service into separate parts, FAIR objected to placing immigration services in a separate entity (now USCIS) from the enforcement wing. Our concern was that such an agency eventually would be “captured by the opposition.”

Surely such an appointment is in conflict with the mission of USCIS. Surely such a selection should warrant serious public scrutiny. The composite picture of Guttentag’s career is one that is hostile to the firm application of U.S. immigration rules and procedures.  Doesn’t this Administration have any sensitivity to appearances regarding its impartiality, its motives and its credibility?


Flaws in CAP’s Latest Propaganda Installment

taxIn yet another cheerleading ploy for the President to bypass the Constitution, the Center for American Progress released a flawed report touting the economic benefits should the President act on his own to hand amnesty to millions of illegal aliens.

At the heart of their argument is the claim that legalizing illegal aliens would result in $44.96 billion in revenue from payroll taxes within five years.

This, of course, assumes that employers who hire illegally will convert to a legal workforce once the Obama amnesty is in place, either out of good will or because the administration will crackdown on workplace enforcement. History indicates that neither scenario is likely. It also assumes that legalization would lead to increased earnings for most illegal aliens, a CAP claim that has been thoroughly debunked.

But let’s put our rose-colored glasses on and pretend that employers start paying payroll taxes and amnestied aliens actually obtain higher paying jobs. This population is still a net drain when benefits are taken into account. States (which shoulder majority of the costs of illegal immigration) spend $84 billion annually to subsidize illegal immigration. While collecting $44.9 billion in payroll taxes will help the federal government (assuming employers switch to a legal workforce), an amnesty without border security would draw more illegal immigration increasing the financial burden on states.

CAP doesn’t want to consider net costs because it doesn’t fit with their agenda—just like they don’t want to concede that employers won’t willingly convert to a legal workforce and the Obama administration won’t make them.

If the President enacts his own executive amnesty, the more likely scenario is that employers and the Obama administration will stick with the status quo. A new wave of illegal aliens will continue to provide employers with a discounted labor force while they wait for their chance at the next amnesty. Meanwhile, the newly amnestied population will compete for jobs in an economy that doesn’t produce enough jobs for the legal American workforce.

Alternately, the same, or greater, tax revenues could be realized by enforcing laws against the employment of illegal aliens and allowing those jobs to be filled by legal U.S. workers. The quid pro quo assumption that a president can hold enforcement of laws hostage to achieve his policy goals is troubling far beyond just the issue of immigration.

CAP’s new report is nothing more than a thinly veiled piece of propaganda promoting poor policy and dangerous precedent.

Executive Amnesty: What Could It Mean?

Barack Obama Should Have Listened to Barack Obama - ImmigrationReform.comThe spate of recent news articles suggesting that President Obama could, by executive action, provide protection against deportation for as many as five million illegal aliens points to an unprecedented political, economic and societal impact on the country. It is unclear where the projection of the number of possible beneficiaries comes from, but it is generally linked to illegal aliens who are family members of U.S. citizens or the illegal aliens who are recipients of the Deferred Action for Childhood Arrivals (DACA) program that President Obama also imposed by executive action.

This proposal, if it materializes, is likely to be characterized as avoiding the separation of families through deportation. It will be accompanied by human interest stories of bright illegal alien students and hard working parents.

The implications of such a proposed action would, however, have an impact much beyond those illegal alien family members. Here’s why:

  • Just as the DACA program set off an unprecedented surge in illegal alien youth from Central America, a new and enormously expanded form of executive amnesty for their parents and other relatives is likely to induce a new wave of illegal aliens attempting to enter the country either to try to fabricate a claim in order to benefit from  the new amnesty or to wait for the next expansion of Obama’s largesse to illegal aliens.
  • There are many illegal aliens in the country already who chose not to apply for the DACA amnesty for reasons such as already having successfully established a fake identity as a legal resident. If they have family members who would benefit from the expanded amnesty program, there is likely to be a new surge in DACA applications – and, therefore, additional new applicants for the new amnesty.
  • If the new executive amnesty program offers protection for illegal aliens in mixed families, an incentive will have been created for illegal aliens to marry a U.S. citizen or legal resident to take advantage of the protection against deportation and the chance to get a work permit and Social Security number. This, in effect, would restore the defunct INA Section 245(i) provision that led to many illegal aliens entering fraudulent marriage contracts to gain legal status. It would also create an even greater incentive for illegal alien women to have a U.S.-born child.
  • What about family members of DACA recipients or legal U.S. residents who are outside the country? Will they too attempt to stream into the country to take advantage of the opportunity? Will the opportunity be given to deported illegal aliens to return if they have a U.S. citizen or DACA relative?

If the estimate of five million beneficiaries is based on a calculation of the number of illegal aliens already in the country who have DACA recipient beneficiaries or U.S. citizen or legal resident immediate family members, that estimate is vastly understated. The number would likely surge because of the potential for others now outside the country to pack their bags and head here, and for the multitude of illegal aliens already here who do not presently have a connection to a DACA recipient or to a U.S. citizen or resident to attempt to establish those links through fraud.

The proposed new executive amnesty will not just perpetuate the nation’s already unacceptable problem with illegal immigration and super-size it, it will have devastating impacts on unemployed Americans who will be further disadvantaged in looking for work by the new work permits handed out to amnesty beneficiaries. Conceding U.S. jobs to illegal aliens will also drive down wages for American workers – especially those looking for entry and other low-wage job opportunities. It will hurt the economy by giving those jobs to foreign workers who often are sending money out of the country to foreign relatives rather than spending it in the local economy where it is earned.

The societal implications are enormous in adding to the enrollment in taxpayer supported public schools where supplemental English programs drain off resources from native-English speakers and where enclaves of former and current illegal aliens impact social services and real estate markets. These impacts only scratch the surface, but they should make clear that there likely is no one in the country who would not be affected negatively.

The Refugee “Cover”

Location_South_AmericaThe border crisis and its flows of unaccompanied minors from Latin America crossing the border into the United States illegally have not ceased to draw attention. Initial claims by the Obama administration that these minors were victims of human trafficking have since been dropped and the case for smuggling upheld.

Other lines of inquiry have surfaced since, geared this time towards giving these children “refugee” status.  The rationale is straightforward if we listen to Rep. Joseph Crowley (D-N.Y.): “These are children who are coming across as refugees because of the violence that they are facing in their homelands.” FAIR’s Research Director, Eric Ruark, was among the first to find this type of argumentation unconvincing, noting that: “The recent surge in illegal immigration, including the increase in illegal alien minors…is the result of Obama Administration policies, and the continuing promises of amnesty from leaders of both parties in Congress, which has been noted by media outlets in Central America.”

A thesis supported by the Honduran first lady, Ana Garcia de Hernandez: “I want to be very clear about something: Violence and poverty have existed in our region for a long time. But what created this problem also has a lot to do with the lack of clarity in U.S. immigration policy.” Ultimately, Vice President Joe Biden had to dismiss the “violence argument” as well: “Nothing’s changed in six months or a year. The neighborhoods are no more violent or no less violent.” He, on the other hand, blamed the incoming flows of unaccompanied minors on criminals guilty of smuggling kids for financial gains.

Professor Raúl Hinojosa-Ojeda (a long-time advocate of open borders), attributes the recent incoming flows to the United States’ economic recovery:

“The global recession reduced migration to the U.S.; the economic recovery has prompted migration to resume. I predict that in the next three to four years, as the economy recovers even more, there will be twice as many children coming. Immigration is like a wave function, and this current rise is entirely driven by the decline in unemployment. The unemployment rate of Latinos in the U.S. has started to go down, so immigration has started to go up…”

Despite all the evidence to the contrary, the “refugee” classification has now been given the stamp of approval of the White House and President Obama is contemplating setting up a refugee program in Central America. Following the U.S. Citizenship and Immigration Services guidelines, refugee applicants must refer to the U.S. Refugee Admissions Program while still outside the U.S. If accepted into the program, they go through medical and background checks and follow a cultural orientation program before being admitted into the country. What the President is suggesting is screening children in Honduras to determine whether or not they qualify as refugee applicants; then flying those who do directly to the United States to avoid having them cross the border under dangerous conditions. These in-country screening programs are not common and were only used as a humanitarian recourse by the U.S. following the Vietnam War and the 1990 Haiti earthquake. Beyond the humanitarian calling, such displays of attention and resources are rather telling.

Why are these children commonly referred to as “refugees” and who, exactly, is a “refugee”?

The United Nations High Commissioner for Refugees (UNHCR), based on the 1951 Convention relating to the Status of Refugees and its 1967 Protocol , defines a “refugee” as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

Following Article 14 of the 1948 The Universal Declaration of Human Rights (UDHR) which recognizes “the right of persons to seek asylum from persecution in other countries”, the United Nations Convention relating to the Status of Refugees was adopted in 1951 and came into force on 22 April 1954. The 1951 Convention was initially designed to deal with the mass upheavals of World War II and was limited to people who fled particular circumstances that occurred before January 1st 1951 in Europe. The 1967 Protocol widened the Convention’s scope to its actual universal coverage by cancelling its initial time and geography limitations.

The definition of a “refugee” and its legal implication are quite clear. Nonetheless, there is a general misuse of the terminology, as we have been witnessing lately by media correspondents and public officials alike. People invoke “refugees” when actually they are referring to “asylum seekers” (i.e. those who have not yet been granted refugee status).  It is important not to confuse the two terms.  According to the International Organization for Migration (IOM), an Asylum seeker (not to be confused with an “internally displaced person” (IDP), who fled but stayed within the borders of his/her country of origin) is:

“A person who seeks safety from persecution or serious harm in a country other than his or her own and awaits a decision on the application for refugee status under relevant international and national instruments. In case of a negative decision, the person must leave the country and may be expelled, as may any non-national in an irregular or unlawful situation, unless permission to stay is provided on humanitarian or other related grounds.”

Asylum seekers’ are either granted or denied refugee status. They become refugees ONLY if their claim for asylum is successful (based on proofs given and the situation in the countries of origin); if not, they may be returned to their country of origin.  There is often a process of appeal which allows them to stay in the receiving country until the appeal is heard and decided. The asylum seeking process is long and complex as it is often difficult for asylum seekers to get the required papers from their country of origin if they fled in a hurry.  This can hold up the process of deciding if they should be granted refugee status.

The Obama administration, as mentioned earlier, is in favor of calling these children “refugees” and helping them accordingly. As much as we agree that humanitarian concerns are at hand, we do not support such “discretional” use of international laws. First, these children are not YET refugees, they need to ask for asylum, become “asylum seekers”, and PROVE a “well-founded fear of being persecuted” before being granted this status. Moreover, there are serious doubts that the majority of these kids are in real danger forcing them out of their homes.

Even UNHCR could not find grounds for refugee statuses when, as early as 2006, it voiced concerns about unaccompanied or separated (a person under the age of 18, who is not under the care and protection of his/her parents, or previous legal or customary primary care-giver, but may be accompanied by other persons) children alongside the Southern border of Mexico. In a study carried out by their regional office for Mexico, Cuba and Central America with the collaboration of Save the Children Sweden, the children’s situation, levels of vulnerability and need for international protection were assessed. Their study’s main findings were as such:

“Although the vast majority of the 75 children interviewed in this study did not meet the criteria to be considered refugees, some of the children interviewed reported having been subjected to abuse, aggressions or assaults during their travels” (emphasis added).

Perhaps the situation has evolved since, but this is less than certain. If most children then (and probably now) did not “meet the criteria to apply for a refugee status”, why distinguish them as such and provide them with exceptional resources?

Following its extensive study, UNHCR came up with a list of recommendations for improving the protection of those children, urging, among other things, the Mexican Government to set the grounds for proper protection mechanisms. The Mexican Government, for the most part, did not follow through; that, at least, is certain.

Undermine the Constitution at Your Own Peril, Too

Constitution_of_the_United_States,_page_1The Founding Fathers designed the separation of powers in our Constitution to protect us from tyranny. And, of course, that’s by far most important function of the Constitution’s checks and balances. But President Obama is finding out that it also can protect a president from undue political pressure.

Before he decided that he would further rewrite the law to suit open borders pressure groups on his own, President Obama himself said to a protestor who interrupted his speech in San Francisco, “if in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition.”

However, he had already shown, with his implementation of Deferred Action for Childhood Arrivals (DACA), an administrative version of the DREAM Act that failed to pass Congress, that to him, these were just empty words. Less than a year before implementing DACA, President Obama had in fact asserted that to do so would be a violation of the law. No wonder that open borders groups now brush aside assertions that he cannot simply do whatever they demand.

Now, though vulnerable Senate Democrats would prefer that the President not grant unilaterally before the election, there is little he can do to satisfy them without in turn angering the open borders pressure groups that believe there should be nothing stopping them from getting their way. As amnesty activist Lorella Praeli says, President Obama “has made certain promises to our community, and he has made those promises public.” She went on to threaten: “The truth is, nothing and no one will stand in the way of relief for our communities, and we will make sure everyone is held accountable.”

No matter what he does, President Obama is unlikely to satisfy every activist with a demand. For instance, some illegal alien pressure groups find a unilateral amnesty that excludes those with criminal records to be insufficient. But an amnesty that includes those with felony records is likely to cause even more distress to a public that has already rejected the President’s immigration policy, including some of the President’s own supporters.  If the President had not unlawfully rejected Congress’ Constitutional authority to write the nation’s immigration laws, he could have deflected some of this pressure from himself onto members of Congress. But now he can’t.

It turns out, as much as President Obama likes to lament the confines of the American political system, it could have helped him, as well as the public. President Obama, having taught his open borders supporters that American political constraints do not apply, has also taught them that they have only him to blame for failing to satisfy all of their ultimatums.