Fact-checking Obama on immigration position change

We can not be ruled by an emperor, king or dictator. It’s not in our Constitution. Obama has ignored that elections have consequences and like a petty spoiled out of touch monarch has formally declared a culture war against the legal citizens of this nation.

Wait until January. Then send an “essential government funding only” bill, then begin defunding his illegal amnesty, Defund the White House staff, the HHS for their complicity in helping illegal aliens sign up for healthcare, and the Attorney General’s offices for taking the side of the president over that of the nation he is supposed to serve. Of the immigration service, fund only the Border Patrol, and the deportation courts. Let Congress and every state who wishes sue Obama in court, Let the victims of all the violent illegal immigrants released under Obama’s orders sue Obama and every agency head all the way to the top who went along and released those criminals on society. And yes, begin the impeachment process. Some say that they won’t have enough Democrat votes, but if we “get in their face” like Obama suggested and use the same SEIU thug tactics against Democrats that their mobs use against their political targets. Let’s “Occupy Democrats” who after all only hold disdain for all those “stupid people” known as “the voters”. Protest at their offices and in front of their homes. Call and write your politicians of both parties regularly until they realize just how angry the American public is and they may yet change their tune.

Oh, and if RINO’s don’t take the hint, do the exact same to them.

Do all of the above. As Obama can not abide by the Constitutional limits of his office or the laws of the land, he is anathema to the oath of office he swore to abide by.

@Wordsmith, #2:

All of which was and remains entirely true.

No laws have been changed. Nothing has been permanently fixed. Temporary measures have been taken. It’s up to Congress to address a faulty immigration system with legislation that deals with the realities of the situation.

Maybe they’ll move in that direction, now that their tail feathers have been set on fire. Legislating in response to the nation’s problems is one of their important designated functions. They haven’t been performing it lately. If you think Obama’s job approval rating is low, look at that of Congress. They’re not going to move it higher by doubling down on useless.

Note that Obama did not pardon these illegal immigrants and even if he did he can only pardon criminal penalties, not civil penalties. That means that they are still here illegally. That is a very important legal detail.

See:

Is Illegal Entry to the U.S. a Crime?

Whether it’s by crossing the U.S. border with a “coyote” or buying a fake U.S. passport, a foreign national who enters the U.S. illegally can be both convicted of a crime and held responsible for a civil violation under the U.S. immigration laws. Illegal entry also carries consequences for anyone who might later attempt to apply for a green card or other immigration benefit.

The penalties and consequences get progressively more severe if a person enters illegally more than once, or enters illegally after an order of removal (deportation) or having been convicted of an aggravated felony.

What Is Illegal Entry?

The immigration law actually uses the term “improper entry,” which has a broad meaning. It’s more than just slipping across the U.S. border at an unguarded point. Improper entry can include:

entering or attempting to enter the United States at any time or place other than one designated by U.S. immigration officers (in other words, away from a border inspection point or other port of entry)
eluding examination or inspection by U.S. immigration officers (people have tried everything from digging tunnels to hiding in the trunk of a friend’s car)
attempting to enter or obtain entry to the United States by a willfully false or misleading representation or willful concealment of a material fact (which might include, for example, lying on a visa application or buying a false green card or other entry document).

(See Title 8, Section 1325 of the U.S. Code (U.S.C.), or Section 275 of the Immigration and Nationality Act (I.N.A.) for the exact statutory language.)
Criminal Penalties for an Improper Entry

For the first improper entry offense, the person can be fined (as a criminal penalty), or imprisoned for up to six months, or both. For a subsequent offense, the person can be fined or imprisoned for up to two years, or both. (See 8 U.S.C. Section 1325, I.N.A. Section 275.)

But just in case that isn’t enough to deter illegal entrants, a separate section of the law adds penalties for reentry (or attempted reentry) in cases where the person had been convicted of certain types of crimes and thus removed (deported) from the U.S., as follows:

(1) People removed for a conviction of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), shall be fined, imprisoned for up to ten years, or both.

(2) People removed for a conviction of an aggravated felony shall be fined, imprisoned for up to 20 years, or both.

(3) People who were excluded or removed from the United States for security reasons shall be fined, and imprisoned for up to ten years, which sentence shall not run concurrently with any other sentence.

(4) Nonviolent offenders who were removed from the United States before their prison sentence was up shall be fined, imprisoned for up to ten years, or both.

What’s more, someone deported before a prison sentence was complete may be incarcerated for the remainder of the sentence of imprisonment, without any reduction for parole or supervised release.

(See 8 U.S.C. Section 1326, I.N.A. Section 276.)
Civil Penalties for an Improper Entry

Entry (or attempted entry) at a place other than one designated by immigration officers carries additional civil penalties. The amount is at least $50 and not more than $250 for each such entry (or attempted entry); or twice that amount if the illegal entrant has been previously fined a civil penalty for the same violation. (See 8 U.S.C. Section 1325, I.N.A. Section 275.)
Immigration Consequences of an Improper Entry

A person who comes to the US without permission of the immigration authorities is inadmissible. To learn more about inadmissibility, see “Immigrant Inadmissibility to the U.S.”

In practice, that usually means that if the person became eligible for a green card or other immigration status, he or she would be ineligible to adjust status within the United States. By leaving the U.S. and applying from overseas, the inadmissibility problem could be solved – unless the person had already stayed in the U.S. for six months or more without a right to be there. In that case, he or she would run into a separate ground of inadmissibility, based on “unlawful presence” in the United States. (For more on how that affects your possibilities of obtaining a green card, see “Illegal Immigrant: Legal Options to Stay in the US.”)

If a person was removed from the U.S. (deported) on the basis of a conviction for an aggravated felony (other than illegal entry or reentry), then the improper entry itself is considered to be an aggravated felony. (See 8 U.S.C. § 1101(a)(43)(O).) Having one of more aggravated felonies on one’s record is a huge problem, because aggravated felonies bar a person from virtually all immigration benefits, and are a grounds of deportability (under 8 U.S.C. 1227, I.N.A. Section 237).

Obama’s statements that he will not enforce immigration laws against them, does not qualify them for green cards. Obama’s executive “memo” can not change the laws regarding their inadmissibility.

Immigrant Inadmissibility to the U.S.

One of the most confusing parts of U.S. immigration law in recent years is one that punishes people who have lived in the United States unlawfully (for example, after an entry without inspection or a visa overstay). It makes them “inadmissible” — that is, ineligible for a green card or visa or other U.S. entry — for either three or ten years, depending on the length of their unlawful stay. Exceptions or waivers do exist, however, to lessen the effect of this law, as you’ll learn about here.

What Are the Three- and Ten-Year Time Bars for Unlawful U.S. Presence?

A whole list of grounds of inadmissibility is found in Section 212 of the Immigration and Nationality Act (I.N.A.). Unlawful presence of more than six months is on that list.

In summary, what the law says is that:

* If you accrue unlawful presence of more than 180 continuous days but less than one year, but you leave before any official, formal removal procedures (i.e. deportation) are begun against you, you will be barred from reentering the United States for a period of three years.

* If you accrue unlawful presence of more than 365 continuous days, then leave prior to any deportation or other formal procedures being started against you, you will be subsequently barred from reentering the United States for a period of ten years.

* If you accrue unlawful presence of more than one year total (in the aggregate, not necessarily continuous), or are ordered removed (deported) from the U.S., and then subsequently enter or attempt to enter without inspection (for example, are smuggled across the border), you will be permanently barred from the U.S., — possibly for your entire life, though after ten years, you can request special permission to apply for a visa or green card.

More:

Grounds of Inadmissibility

There are 10 categories of inadmissibility, each with a subset of multiple grounds of inadmissibility. The categories are:

(1) Health-related grounds;

(2) Criminal and related grounds;

(3) Security and related grounds;

(4) Public charge;

(5) Labor certification and qualifications for certain immigrants;

(6) Illegal entrants and immigration violators;

(7) Documentation requirements;

(8) Ineligible for citizenship;

(9) Aliens previously removed; and

(10) Miscellaneous grounds of inadmissibility.

Within these categories can be found the most common grounds of inadmissibility, including:

• Crimes involving moral turpitude (“CIMT”). The term CIMT is not defined by the Immigration and Nationality Act (“INA”). Its definition, however, has been set forth by the U.S. courts and the Board of Immigration Appeals (“BIA”). A CIMT is a criminal act that is, in and of itself, morally reprehensible and intrinsically wrong, as opposed to criminal conduct that is simply prohibited by law. Examples of CIMTs include: murder; rape; assault; kidnapping; theft; and fraud.

• Controlled substance offense. Regardless of the particular substance or amount of the substance involved, a foreign national is inadmissible to the U.S. if s/he has ever been convicted of a violation of any law relating to a controlled substance.

• Present without admission or parole. Any foreign national who is found within the borders of the U.S. who entered the country without being lawfully admitted or paroled into the U.S. is inadmissible. While these individuals are technically inadmissible to the U.S. under the INA, they will be placed into removal proceedings upon apprehension by U.S. immigration officials in the U.S.

• Fraud/Misrepresentation. Any foreign national who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the U.S. or other immigration benefit is inadmissible. A false claim to U.S. citizenship is also an extremely egregious violation of the INA and a ground of inadmissibility.

• Intending Immigrant. Any foreign national who seeks to enter the U.S. with the intent of residing in the U.S. permanently but who does not have the proper authorization to do so is inadmissible. This ground of inadmissibility is often applied by U.S. immigration authorities to individuals who have spent a considerable amount of time “visiting” the U.S. and/or those who do not have significant ties to a foreign country.

• Unlawful Presence. A foreign national is unlawfully present in the U.S. if s/he is present in the U.S. after the expiration of the period of stay authorized by U.S. immigration officials or who is present in the U.S. without being lawfully admitted or paroled into the U.S. Individuals who are unlawfully present for less than six (6) months are not inadmissible under this section of law. Those who are unlawfully present for more than six (6) months but less than one (1) year are inadmissible for a period of three (3) years following departure from the U.S. Individuals who are unlawfully present for more than one (1) year are inadmissible to the U.S. for a period of 10 years following the date of departure from the U.S.

Immigration and Nationality Act (Legal Code)

Since Obama did not pardon them, his memo changes nothing regarding their inadmissibility. As he did not issue an official pardon there is no legal forgiveness. Those that were inadmissible and thus ineligible for a green card still are. Obama can print up all the green cards he wants, but the leaders, agents and officers DHS and INS who are all sworn to faithfully enforce the laws under their juristriction will be in direct violation of federal law if they try to hand out green cards illegally to inadmissible and still illegal aliens.

If you think about it, it would be little different than local law enforcement officers aiding and abetting criminals by turning off alarms, ignoring 911 calls, or even detaining individuals and standing by while criminals rob or rape the victims.

No, ‘Prosecutorial Discretion’ Does Not Justify Obama’s Lawless Amnesty

prosecutorial discretion is a simple and, until recently, an uncontroversial matter of resource allocation. It merely holds that violations of law are abundant but law-enforcement resources are finite; therefore, we must target the resources at the most serious crimes, which of necessity means many infractions will go unaddressed.

I’ve highlighted the last part because it is the key to understanding how Obama’s amnesty perverts the doctrine.

As is always the case with a well-constructed fraud, Obama’s amnesty has some cosmetic appeal because it derives from some indisputable claims. In the American system, the power to prosecute belongs solely to the executive. Consequently, it is for the president alone to prioritize which law violations will be prosecuted and which will go unaddressed.

(Snip)

There are also many more fraud offenses committed in the U.S. than there are law-enforcement resources to prosecute them. So federal prosecutors, in an exercise of prosecutorial discretion, will often establish a fraud threshold amount — say, $10,000 – beneath which they will not open a case. But that does not mean you now have a right to steal $9,999.

If police in a big city are overwhelmed with violent crime and focus their attention strictly on murder, maiming, and rape, that does not mean it is now legal to go around punching people in the nose.

(Snip)

Prosecutorial discretion means you are not required to prosecute every crime — which, since doing so would be impossible, is just a nod to reality. It does not mean that those crimes the executive chooses not to enforce are now no longer crimes. Prosecutorial discretion has never meant that the passive act of non-enforcement has the legal effect of repealing criminal laws enacted by Congress. And it has never even been suggested, because to do so would be absurd, that under the doctrine of prosecutorial discretion, the executive decision not to prosecute certain crimes means the people who commit those crimes should be rewarded for committing them. That, of course, would only encourage others to commit them on a more massive scale.

Yet that is President Obama’s theory. He is claiming not only the power to determine what immigration laws get enforced and which illegal immigrants get prosecuted — power he unquestionably has. He also claims the power to declare (a) that criminal acts are somehow lawful — that illegal aliens now have a right to be here — just because Obama has chosen not to prosecute them; and (b) that those who engage in this unprosecuted activity will be rewarded with benefits (lawful presence, relief from deportation, work permits, etc.), as if their illegal acts were valuable community service.

That is an utter perversion of prosecutorial discretion and a blatant usurpation of congressional power. Only Congress has the power to repeal criminal laws and confer positive legal benefits on non-Americans.

In past rulings on prosecutorial discretion, the Supreme Court never dreamed of a president using it on such an immense scale to not enforce our laws on an entire class of lawbreakers. (We should also remember a certain related law called a writ of mandamus whereby the court can force a public official to do perform a duty entrusted to them.) When Congress’ lawsuit against Obama reaches the SCOTUS, they may just change their mind against Obama’s perversion of prosecutorial discretion, and make a new ruling in order to protect and defend the Constitutional separation of powers.

Think it can’t happen Greg? Think that the Supreme Court will roll over and let the perversion of a prosecutorial process destroy the checks and balances, and throw out 240 years of Constitutional government to supplicant and increase the power of a despotic president, and in doing so invalidate the Legislative branch and minimize it’s importance into obscurity? I think you are sadly mistaken if you do. The SCOTUS may perhaps take the chicken’s way out and refuse to consider the case, but it is more likely that the Court will recognize the inherent danger of doing so, and instead rule Obama’s move as unconstitutional.

Obama can refuse to deport illegal aliens however, as I’ve stated, Obama’s executive amnesty does not pardon these law breakers, it is simply and order directing DHS & INS not to enforce the laws. So the majority of them are still (under our laws) inadmissible for receiving green cards. Obama can not change the law to “qualify them” for green cards.