Another Mini-Amnesty, This Time For Visa Overstayers From Visa Waiver Countries

The Obama Regime has again expanded the Administrative Amnesty for a select group of illegal aliens.  This time aliens admitted on the Visa Waiver Program who overstayed their period of admission.

HuffPo November 17, 2013 by Alicia Caldwell

Obama Administration Quietly Authorizes Immigration Policy Change For Visa Waiver Program

WASHINGTON (AP) — Some immigrants who have stayed in the United States longer than they were allowed can soon apply to keep living in the U.S. under another immigration policy change quietly authorized by the Obama administration.

According to a Nov. 14 policy memorandum from U.S. Citizenship and Immigration Services, some immigrants from 37 Visa Waiver Program countries who are immediate relatives of U.S. citizens may be allowed to stay.

People from visa waiver countries don`t have to get a visa before coming to the U.S., but they can only stay for up to 90 days. The program covers mostly European countries.[More]

While Visa Waiver Program (VWP) does allow those admitted under the VWP to adjust status based on a valid petition filed by a spouse, adult child, or parent, there were two caveats to that program.

The first being that the beneficiary must file the petition while the applicant is lawfully present and the alien must not have committed fraud during the admission process.  Basically this restricted those who could apply to those who came here and just happened to get married to a person they did not know before they entered.  Anything else, was considered a violation of the conditions of admission based on their intent upon arrival, e.g. they did not intend to enter as a visitor for pleasure or business. The applicant was usually denied if their original intent was to enter without a visa and to adjust to legal permanent residence.  Those applicants were considered to be fraudulently avoiding obtaining an immigrant visa.

Now the story implies that the adjustment of those on the VWP who`s status expired is legally provided for.  However that is not true.

First, U.S. Citizenship and Immigration Services (USCIS) and its predecessor the legacy Immigration and Naturalization Service (INS) denied all applications by illegal aliens who entered on the VWP. Those aliens who filed Form I-485, Application to Register Permanent Residence or Adjust Status, were denied as a matter of law.  The alien in question was unlawfully present and without a valid Section 245(i) waiver which allowed certain illegal aliens who were petitioned by adult children, spouses or parents to adjust status in the United States, which has since expired, meaning that illegal aliens cannot adjust their status in the United States.

Second, the current claim by USCIS is not based on law, but on a claim that the executive branch has discretion to ignore Acts of Congress based on some ephemeral Executive branch discretion to ignore the law.

USCIS Policy Memorandum PM-602-0093 dated November 14, 2013

SUBJECT: Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program 

U.S. Immigration and Customs Enforcement (ICE) has authority to order the removal of a VWP overstay, including an immediate relative, under INA section 217(b) and 8 CFR 217.4(b). Numerous courts of appeals agree that, generally, a VWP overstay may not contest a removal action on the basis that he or she has filed Form I-485. However, these cases concern only the individual’s inability to contest removal. They do not address whether the Department of Homeland Security (DHS) can, as a matter of discretion, decline to seek the individual’s removal and grant adjustment if the individual is eligible. Nor do these decisions preclude a VWP overstay who is not subject to a removal order from filing a Form I-485 with USCIS.

Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS exercises this discretion on behalf of DHS.

There is that unconstitutional word, discretion.  There is nothing in the Immigration and Nationality Act that allows for that discretion, especially since it was understood since the inception of the VWP program, and practiced since then that aliens admitted to the United States under VWP were not permitted to adjust status based on either fraud or subsequently overstaying the period of admission.  

Nor in any event is failing to deport an alien authorized by law.  It is an explicit attack on the separation of legislative and executive powers in the Constitution for a minor executive branch official, much less the President, to fail to faithfully execute the laws of the United States.  This mini-amnesty is more than a violation of the law, it is a mini-coup d`etat aimed directly at the Constitution, and a method by which the Regime is preparing the battlefield for not only a further amnesty as I have predicted, but for further attacks on more fundamental structures of our government and the rights held by Americans.  Be afraid, be very afraid.  Obama has dictatorial ambitions.