A Project of The Annenberg Public Policy Center
FactCheck.org is celebrating 15 years of holding politicians accountable.

Did Obama ‘Enact’ DREAM Act?


Q: Did President Obama “enact” the DREAM Act by executive order to give “amnesty” to 20 million illegal immigrants?

A: No. But the administration in 2011 adopted a policy of giving “particular care” before deporting students, military veterans and others deemed to be low risk. In 2011, it issued a new policy to allow certain illegal immigrants brought to the U.S. as children to apply for two-year work permits.

FULL QUESTION

Is this true?

OBAMA Administration ENACTS
Dream Act By Executive Order!

Please Sign The Dream Act Injunction Today
Were you aware that the DREAM Act requires the Department of Homeland Security to award amnesty to every illegal alien claiming to meet the minimal criteria of:

[EET ]

1. Present in the U.S. for the last five years;
2. A U.S. high school diploma or GED, or admitted to a U.S. institution of higher learning; or U.S. military service and
3. Of “good moral character” with no more than 2 misdemeanor convictions?

REMEMBER THERE IS NO DREAM ACT PENDING IN CONGRESS — BY THE WILL OF THE AMERICAN PEOPLE IT HAS BEEN DEFEATED!!!!

But ignoring the political defeat of this law, the Obama administration has bypassed Congress and We the American People by enacting the DREAM Act via dictatorial Executive Orders while making every effort to hide their actions. They enlisted the help of ICE on June 17th, with a memo issued by ICE Director John Morton ordering ICE agents to use caution when making deportation decisions.

I urge you to fill out the electronic DREAM ACT INJUNCTION FORM– right away!

The Obama administration memo from John Morton, Director of ICE, directs ICE agents to use “prosecutorial discretion” with regard to enforcing immigration laws.
Director Morton says that the Obama Administration policy directs border patrol agents not to enforce immigration laws: “When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of the enforcement authority available to the agency.” You read that right. According to the Obama administration “favorable” enforcement means NOT enforcing the law! Thus the memo is very favorable for illegals.

The ICE memo suggests reasons that will prevent illegals from being deported. The list looks like it was taken directly from the Dream Act! See for yourself:

If any illegal alien…

1. Came to the U.S. as a young child
2. Graduated high school, is pursuing college or an advanced degree
3. Has a relative who has served in the military, reserves, or national guard
4. Is pregnant
5. Has a spouse, child or parent who is a citizen or a permanent resident
…ICE Can’t Deport Them!

I urge you to fill out the electronic DREAM ACT INJUNCTION FORM– right away!

According to a well-placed Homeland Security Administrator (who obviously prefers to remain anonymous), “The plan is to incrementally remove all obstacles for immigration reform without a public debate.” The confidential source said, “Amnesty is a 100% done deal already.” This latest Director’s memo looks like the Homeland Security Administrator is right.

Your DREAM ACT INJUNCTION FORM will urge Congress to:

1. EXPOSE Obama’s on-going and planned use of his Executive powers to give
Dream Act Amnesty to over 20 million illegals.
2. PUBLICLY DENOUNCE Obama’s back door immigration plans that threaten
our Constitution, our Bill of Rights, and our institutions of ordered liberty.
3. LEAD A BATTLE in Congress to void each and every pro-illegal immigration and
Dream Act Executive Order and Directive that Barack Obama issues.

Are you prepared for Obama to grant over 20 MILLION illegals (including dangerous criminals) American citizenship? You better be – or you better be prepared to ACT NOW to stop it.

We must DEMAND Congress fight tooth and nail to stop Obama’s Executive Orders and Directives game plan. Then we must create a grassroots uprising of Americans willing to back our stand.

That’s why I’m counting on you to sign your DREAM ACT INJUNCTION FORM…

…And if you can afford it, please generously give a contribution of $20, $30, $50, $100 or more to Secure Borders Coalition to get this word out to your fellow Americans! But the threat is very real, and we MUST ACT.

So please sign your DREAM ACT INJUNCTION FORM today!

Keep Faith, Secure Borders Coalition
www.SecureBordersCoalition.com[/EET]

FULL ANSWER

The DREAM Act would allow certain illegal immigrants — those who were brought to the United States as children and who are now in college or the military — to gain legal status and qualify for citizenship. Senate Democratic leadership brought the bill up last year, but it failed to get enough votes to allow a floor vote. This year, there was a Senate hearing on a new version of the bill in June, but its future is doubtful.

The e-mail above claims that “the Obama administration has bypassed Congress and We the American People by enacting the DREAM Act via dictatorial Executive Orders” after the bill failed to pass. That’s not true. National Archives records show that Obama has not issued any executive orders on immigration. Executive orders can be powerful tools and many carry the “force of law,” although the next president can quickly undo them with another EO.

Although Obama didn’t issue an executive order, the e-mail is correct that Immigration and Customs Enforcement Director John Morton issued a June 17 memo providing ICE agents and officials with “guidance on the exercise of prosecutorial discretion.” The e-mail, however, distorts the purpose and meaning of the policy directive.

The memo said such discretion is necessary because the agency has “limited resources” and “must prioritize the use of its enforcement personnel.” It gave guidelines for who should not be detained and deported, and it listed 19 factors to be considered, including if the person is in “pursuit of education” in the U.S. It also listed eight “classes of individuals that warrant particular care,” including “individuals present in the United States since childhood.” Instead, the memo said, the agency’s priority should be deporting illegal immigrants who are “a clear risk to national security,” “serious felons,” “known gang members” and “individuals with an egregious record of immigration violations.” Such policy directives can easily be undone simply by issuing a new policy directive.

The e-mail — which was written as part of a fundraising solicitation from the anti-immigration group Secure Borders Coalition — distorts other aspects of DREAM Act and Morton’s memo:

  • The e-mail grossly overstates how many people would be eligible for the DREAM Act, when it criticizes “Obama’s on-going and planned use of his Executive powers to give Dream Act Amnesty to over 20 million illegals.” By most accounts, there are no more than 10.8 million to 13 million TOTAL illegal immigrants in the U.S., and nonpartisan congressional analysts estimated that 1.1 million of them may be eligible for the DREAM Act by 2020.
  • The e-mail wrongly says Obama plans to grant citizenship to “over 20 MILLION illegals (including dangerous criminals).” In fact, the administration is targeting dangerous criminals for deportation — a policy clearly spelled out in the same Morton memo that the Secure Borders Coalition cites in its e-mail.
  • The e-mail claims, without evidence, that an anonymous administration official said the Obama administration has a plan to “incrementally remove all obstacles for immigration reform without a public debate.”
  • The e-mail distorts the memo by suggesting it was written solely for those who would have benefited from the DREAM Act. But there are eight “classes of individuals that warrant particular care,” according to the memo, and the majority of them would not qualify for legal status under the DREAM Act.
  • The e-mail provides a list of the “minimal criteria” illegal immigrants must meet to be eligible for the DREAM Act, but there are more criteria in the bill than listed here.

‘DREAM Act Amnesty’ for 20 Million Illegals?

The most ludicrous claim in this e-mail is that “over 20 million illegals” will become citizens because of the Obama adminstration. There are not even 20 million illegal immigrants living in the U.S.

The 20 million figure is used twice, including once urging people to sign a petition — “an injunction form” — to “EXPOSE Obama’s on-going and planned use of his Executive powers to give Dream Act Amnesty to over 20 million illegals.” The Congressional Budget Office analysis of the bill says 1.1 million illegal immigrants would be granted “conditional nonimmigrant status” under the DREAM Act by 2020. Republican Sen. Jeff Sessions, a critic of the DREAM Act, largely agreed in a Dec. 9, 2010, floor speech, saying “we will have 1 to 2 million people who are going to seek protection under this act.”

Granted, Morton’s policy on prosecutorial discretion covers more than just those potentially eligible for the DREAM ACT — so more than 1.1 million illegal immigrants could benefit from his June directive. But certainly not “over 20 million illegals.” By most accounts, there aren’t close to 20 million illegal immigrants in the U.S. Estimates from the Department of Homeland Security, the nonpartisan Pew Hispanic Center and the conservative Federation for American Immigration Reform (FAIR) put the total number of illegal immigrants between 10.8 million and 13 million. Homeland Security estimated the number at 10.8 million as of January 2010, Pew at 11.1 million as of March 2009, and FAIR at 13 million as of 2008.

Citizenship for ‘Dangerous Criminals’?

In a second reference to 20 million illegal immigrants, the e-mail makes another false claim about the administration’s treatment of “dangerous criminals.”

E-mail: Are you prepared for Obama to grant over 20 MILLION illegals (including dangerous criminals) American citizenship?

Immigration and Customs Enforcement has had a policy of targeting criminals for deportation since early in the Obama administration — following and later building on the policies of the Bush administration. Transactional Records Access Clearinghouse, or TRAC, a data gathering and research organization at Syracuse University, “noted that during the first three months of FY 2010 there appeared to be a change in ICE enforcement strategy — targeting individuals who had committed crimes while in this country (see Figure 1 reproduced from earlier report).” The chart shows an increase in detainees who committed crimes from 27 percent of all illegal immigrants detained in FY2009 to 43 percent in the first three months of FY2010. The trend continued through the first nine months of FY2010.

TRAC, Aug. 2, 2010: Indeed, focusing just on aliens who have committed crimes in this country, the number of criminal aliens removed by ICE has already broken all previous records, and climbed to an all-time high. The removal pace of criminal aliens in FY 2010 is fully 60 percent higher than in the last year of the Bush administration, and at least a third (37%) higher than in the first year of the Obama administration.

For the entire fiscal year, which ended Sept. 30, 2010, ICE deported a record number of more than 392,000 illegal aliens — half of them labeled as “criminals,” according to data TRAC received from ICE. Sue Long, director of the TRAC Research Center, told us in an interview that the data show most of the deportees identified as criminals did not commit serious crimes by the agency’s own definition. The August 2010 TRAC report also questioned the agency’s classification of people it deems “criminals,” noting that traffic violations result in detainees being placed in the second of three “criminal” tiers. But, Long said in an e-mail, the administration “should be credited with placing a higher emphasis on going after serious criminals.”

In March 2011, Morton wrote a memo to his staff establishing written priorities for the agency. That memo told ICE employees to put a “particular emphasis” on “violent criminals,” “gang members” and those who pose a “serious risk to public safety.” It also advised that “additional guidance on prosecutorial discretion is forthcoming” — guidance that was provided in the now infamous June memo.

‘Prosecutorial Discretion’

The e-mail suggests that the Obama administration’s use of prosecutorial discretion is unusual and was written just for DREAM Act students. That’s not true on either count.

Shoba Sivaprasad Wadhia, director of the Center for Immigrants’ Rights at Penn State University Dickinson School of Law, wrote a 56-page paper called “The Role of Prosecutorial Discretion in Immigration Law.” The use of prosecutorial discretion is varied and widespread, she writes.

Wadhia, Aug. 14, 2010: The concept of “prosecutorial discretion” appears in the immigration statute, agency memoranda, and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or to release a noncitizen; whether to initiate removal proceedings; whether to execute a removal order; and various other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances.

Wadhia also said “one of the most common forms of prosecutorial discretion is ‘deferred action’ ” — first revealed by the former Immigration and Naturalization Service during a lawsuit in the 1970s involving former Beatle John Lennon. Until then, the “nonpriority program,” as it was called, was “a secret operation of the INS,” Wadhia wrote. Following the Lennon case, the INS issued “operations instructions” that listed factors INS officials should consider when using prosecutorial discretion — including some of same factors in Morton’s June memo. The 1975 guidelines listed, for example, “many years’ presence in the United States” as a favorable factor in considering deferred action, while Morton’s memo lists “the person’s length of presence in the United States.”

Morton’s memo was not written just for DREAM Act students. The memo listed eight “classes of individuals that warrant particular care,” and two of them clearly would fall under the DREAM Act:

  • Veterans and members of the U.S. armed forces
  • Individuals present in the United States since childhood

The other classes of people that should be considered for prosecutorial discretion, as listed in the June memo:

  • Long-time lawful permanent residents
  • Minors and elderly individuals
  • Pregnant or nursing women
  • Victims of domestic violence, trafficking or other serious crimes
  • Individuals who suffer from a serious mental or physical disability
  • Individuals with serious health conditions

Who’s Eligible for the DREAM Act?

The e-mail distorts the DREAM Act by listing just some of the criteria illegal immigrants must meet in order to be eligible for legal status under the proposed legislation.

E-mail: Were you aware that the DREAM Act requires the Department of Homeland Security to award amnesty to every illegal alien claiming to meet the minimal criteria of:

1. Present in the U.S. for the last five years;
2. A U.S. high school diploma or GED, or admitted to a U.S. institution of higher learning; or U.S. military service and
3. Of “good moral character” with no more than 2 misdemeanor convictions?

The DREAM Act, as re-introduced by Senate Majority Leader Harry Reid on May 11, 2011, requires that “the alien was 15 years of age or younger on the date the alien initially entered the United States.” It further requires that an illegal immigrant be 35 years or younger at the time of enactment and meet a variety of other immigration standards set in the Immigration and Nationality Act. In addition, an illegal immigrant must pass a background check and submit both “biometric and biographic data” — that is fingerprints and some form of birth documentation — in order to be considered for legal status.

In short, the requirements are more stringent than listed in the e-mail.

We take no position on the administration’s immigration policy and its use of prosecutorial discretion. In the end, we leave it for you to decide if the Obama administration has overreached — “bypassed Congress,” as the e-mail claims — or whether the federal agency is taking a “sensible and tough enforcement” approach, as ICE’s Morton described it in a blog post.

Update, June 19, 2012: President Obama on June 15 announced a new policy that would allow young illegal immigrants who were brought to the U.S. as children to apply for work permits without fear of deportation for two years, subject to renewal, if they meet certain eligibility requirements. The new policy applies to those who are 30 or younger and who came to the United States before the age of 16. They must be in school, have graduated from high school, have a high-school equivalency degree or have served in the military. Those who have committed a felony, a significant misdemeanor or multiple misdemeanors are not eligible. The policy could affect up to 800,000 young illegal immigrants now living in the U.S.

— Eugene Kiely and Scott Blackburn

Sources

U.S. Senate. “S. 3992. Development, Relief, and Education for Alien Minors Act of 2010” (as introduced 1 Dec 2010.)

Bolton, Alexander. “Senate rejects DREAM Act, closing door on immigration reform.The Hill. 18 Dec 2010, accessed 20 Jul 2011.

Dream Act Gets First Senate Committee Hearing.” Fox News 29 Jun 2011, accessed 20 Jul 2011.

U.S. Senate. “S. 952. DREAM Act of 2011.” (as introduced 11 May 2011.)

Executive Orders. National Archives. Accessed 20 Jul 2011.

Congressional Research Service. “Presidential Directives: Background and Overview.” 7 Jan 2005.

U.S. Immigration and Customs Enforcement. “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.” 17 Jun 2011.

U.S. Congressional Budget Office. “S. 3992 Development, Relief, and Education for Alien Minors Act of 2010, Cost Estimate.” 2 Dec 2010.

Sessions, Jeff. “Sessions Speaks on DREAM Act Flaws” Transcript. 9 Dec 2010.

U.S. Department of Homeland Security. “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010.” Feb 2011.

“Unauthorized Immigrants in the U.S.” Pew Hispanic Center. Accessed 20 Jul 2011.

“Immigration Facts.” Federation for American Immigration Reform. Accessed 20 Jul 2011.

Current ICE Removals of Noncitizens Exceed Numbers Under Bush Administration.” Transactional Records Access Clearinghouse (trac.syr.edu). 2 Aug 2010. Accessed 20 Jul 2011.

Vedantam, Shankar “U.S. deportations reach record high.Washington Post. 7 Oct. 2010.

Long, Sue. Interview with FactCheck.org. 11 May 2011.

Long, Sue. E-mail sent to FactCheck.org. 11 May 2011.

U.S. Immigration and Customs Enforcement. “Memorandum: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens.” 2 Mar 2011.

Wadhia, Shoba Sivaprasad. “The Role of Prosecutorial Discretion in Immigration Law.” Connecticut Public Interest Law Journal. Vol. 9.No. 2 (2010).

Morton, John, director, U.S. Immigration and Customs Enforcement. “Get the Facts About Immigration Enforcement.” Department of Homeland Security blog post. 26 Aug 2010. Accessed 20 Jul 2011.