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OK Chicken Little when exactly will the sky fall?

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OK Chicken Little when exactly will the sky fall?

  1. 1. OK Chicken Little, When EXACTLY Will The Sky Fall? By Joseph P. Whalen (July 8, 2012)I am so sick and tired of the nonsensical rantings and ravings of madmen, fools,reactionaries, alarmists, and assorted nut-jobs in connection with numerous issuesraised under the Immigration and Nationality Act. I need to vent about some of themore egregious and idiotic things I have run across lately!Provisional Unlawful Presence Waivers via the Proposed I-601AFirst of all, it does not exist yet. I don’t think it is “unfair” to narrow the class ofeligible individuals to “immediate relatives of a USC” (IRs). IF, the decision hadbeen made up-front to broaden the class, I believe that the anti-immigrant membersof Congress would have taken action against it and killed it immediately throughoverly harsh reactionary legislation, which would have made the overall situationworse for all for a long time to come. As is, they are just a bunch of barking dogsthat have not bitten anyone yet. Let them bark until the next election is over.Remember the past or be doomed to repeat it. Don’t you remember some of theharsh moves in the past 30 years? Certain harsh moves were necessary due toapplicants and petitioners participating in sham marriages. Due to that situation wegot the Marriage Fraud Amendments and “conditional residence” status. Do youremember a former waiver under INA § 212(c) and how it got killed and insteadwe got a harsh definition for “aggravated felony” which has grown over time? Doyou remember how Congress stepped in and provided a definition for “conviction”for immigration purposes?The BIA tried to make “advance waivers” available in the U.S. fifty-four (54)years ago in Matter of De F-, 8 I&N Dec. 68 (A.G. 1959)1. In that case, the BIAinitially, in 1958, remanded a case to the Special Inquiry Officer to decide themerits of her waiver application prior to the alien respondent departing abroad toapply for her immigrant visa as the spouse of a USC. The INS Commissioneropposed the BIA via a Motion and requested (demanded) that the case be certified1 See: http://www.slideshare.net/BigJoe5/matter-of-de-f-8-in-dec-68-ag-1959-bia-reversed-commr-affirmed-13211285 Page 1 of 4
  2. 2. to the Attorney General in order to settle their dispute. The A.G. sided with INSand this concept took over a half century to come back around for implementation.The “extreme hardship” that must be demonstrated must be to a “qualifyingrelative”. The factors used in order to determine if extreme hardship exists has notbeen altered one way or the other. The criteria have evolved over many years perBIA Precedent. AAO actually has more hands-on experience applying that criteriain appeals, motions, and certifications but has not published a Precedent on topic.  The overall class of eligible relatives was chosen by Congress and placed in the statute in order to exclude the proverbial “anchor babies” from consideration in any extreme hardship waiver case.  USCIS is appeasing Congress slightly by only allowing IRs to apply for provisional waivers. If USCIS had not done it this way, what would Congress have done to the statute?  The anti-immigrant factions have their facts wrong on the above issues and many more issues. Those opposed to the implementation of these provisional I-601A waiver procedures also spew much nonsense that is directly contrary to statutory requirements as well as the Directive in the Memo.  The misinformation is spewed in order to exacerbate ethnic (and racial) tensions and spread fear on both sides of the issue. They are equal opportunity hate & fear-mongers.Deferred ActionFirst of all, it was a Policy Memo from the Secretary. It was NOT an ExecutiveOrder. This misperception has been spewed not only by the anti-immigrantfactions but quite unfortunately by immigration lawyers as well! To them I say,don’t go back to law school, go back to high school (or grammar school) which iswhere you should have learned this distinction in a civics class like I did (mypersonal learning experience as to this distinction came in the 7th grade in aparochial school social studies class. Thank you to Ms. Virginia Homewood!). Page 2 of 4
  3. 3. Next, this particular “Deferred Action” is an extension of “ProsecutorialDiscretion” to a narrowly defined class of the lowest priority cases. There areamazingly inaccurate accusations spewing forth from the anti-immigration factionsabout who will be granted deferred action.There will NOT be hoards of murderers and rapists carousing in the streets withtheir drug-dealing, gun-toting pals. That is a bunch of nonsense. On the flipside ofthat, the “open-doors” crowd would have you believe that “victims of domesticviolence” are being shackled and fingerprinted at every turn and being stuffed intocargo planes then air-dropped into war zones while in labor and having a seizure.Again, that’s a bunch of nonsense. The “open-doors” crowd also would have youbelieve that every white-haired old grampa is an angel but they don’t want you tofind out that that same grampa has been on the run since he was last deported forarmed robbery, rape, and attempted murder.The narrow class of eligible aliens was chosen for a reason. Not having been in theroom when that decision was made, I can only guess.  That said, it appears that the so-called “DREAMers” were mainly dragged here by parents who came after the last amnesty and amnesty-like grants of relief by Congress (NACARA, HRIFA, LIFE Act and the 245(i) extension and legalization settlement agreements). This helps me understand the age range better. It should exclude the parents of the DREAMers who specifically came in the belief that if they just waited long enough, Congress would have another amnesty and legalization program just for them personally. The DREAM Act would have excluded them and this Deferred Action does exclude them.  That said, the kids should not have to suffer for the sins or unlawful acts of their parents. Also remember that the Deferred Action just like the DREAM Act excludes gang-bangers and drop outs. Not every kid is an angel and not every kid will be granted Deferred Action. Prosecutorial discretion has limits. Page 3 of 4
  4. 4. Prosecutorial Discretion 2Some aliens unlawfully present in the U.S. who are not major league criminals ornational security threats have been receiving "Prosecutorial Discretion" for manyyears. More attention has been paid to the exercise of that discretion lately but it isNOT NEW. The Doris Meissner I.N.S. Memo of November 17, 2000 3, spelled outthe basic criteria still used in exercising Prosecutorial Discretion but even then itwas not new. The following from page 3 of that November 17, 2000, INS Memo: "Courts recognize that prosecutorial discretion applies in the civil, administrative arena just as it does in criminal law. Moreover, the Supreme Court “has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Both Congress and the Supreme Court have recently reaffirmed that the concept of prosecutorial discretion applies to INS enforcement activities, such as whether to place an individual in deportation proceedings. INA section 242(g); Reno v. American-Arab Anti- Discrimination Committee, 525 U.S. 471 (1999). The “discretion” in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances. Consequently, it is a powerful tool that must be used responsibly."ConclusionWhile the preceding are just a few highlights, I feel better already just doing myown little bit of ranting and raving! Be grateful that I am not going to get started onsome of the crap I have been reading and hearing in connection with EB-5. Toomany under informed people have gotten on stage and spewed nonsense! Theyneed to get the hook!4 Some are decrying California as KILLING ALL EB-5POSSIBILITIES! They are conveniently omitting the basis for their assertion isthat California has determined that it made a few errors while learning its EB-5role but has chosen to fix that mistake by actually following the law and refusing togerrymander bullshit TEAs. Like I said, don’t get me started! That’s my two-cents,for now.2 See: http://www.slideshare.net/BigJoe5/navarreteprado-v-holder-9th-cir-72123 See: http://iwp.legalmomentum.org/reference/additional-materials/immigration/enforcement-detention-and-criminal-justice/government-documents/22092970-INS-Guidance-Memo-Prosecutorial-Discretion-Doris-Meissner-11-7-00.pdf/view4 In the old days of vaudeville, when an act stunk and got the crowd enraged, they used a largesheppard’s crook to physically drag the bad acts and actors off the stage to prevent crowds fromrioting! Page 4 of 4

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