Friday, March 9, 2018

How John Lennon and Yoko Ono “Created” DACA— Amazing Intrigue


Everyone seems to know about DACA—but where did this presidential authority come from, and is it valid? DACA stands for Deferred Action for Childhood Arrivals. See the words in red, “Deferred Action?” It comes from a president’s inherent powers under immigration law to defer deportation. It’s somewhat similar to a prosecutor’s discretion. Prosecutors often agree to a plea deal where the defendant takes responsibility for a lesser offense. "Deferred Action" means a person is deportable but the U.S. will hold off removal.
Until today, I never knew the origin of this power. A law review article by Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law (2010), gives us the following explanation (which I quote in full):

The use of prosecutorial discretion and the “nonpriority program” specifically was revealed by INS in 1975 as a consequence of a lawsuit involving John Lennon and Yoko Ono. Before this time, the  nonpriority program was a secret operation of the INS. Leon Wildes represented the couple and has since written extensively about the nonpriority program.
As described by Wildes, John Lennon entered the United States in the summer of 1971 as a visitor and was thereafter placed in deportation proceedings for overstaying his visa. Lennon and his wife came to the United States in order to assume custody of Kyoko, Yoko Ono’s daughter from a previous marriage. While Lennon and Ono were awarded custody over Kyoko by the family court, their situation was complicated by the fact that the child’s father had kidnapped Kyoko and could not be found.
Because he believed he was charged with deportation for political reasons, Lennon requested for nonpriority status, among other forms of relief. Through his attorney, Lennon spent more than one year trying to gather information from INS about the nonpriority status program and related procedures. At the time, INS contended that data on the nonpriority status program was “not compiled.” Even when Lennon motioned his immigration judge to depose a member of the Government who was informed about the nonpriority status program, the immigration judge denied his request.
Ultimately, Lennon was able to obtain information through a Freedom of Information Act (FOIA) action. Specifically, information about the nonpriority program was available under the INS’s “Operations Instructions” which, until the Lennon lawsuit, remained private information on the INS “Blue Sheets.” As a consequence of the FOIA Action, and despite the numerous statutory exceptions to the publication of information, INS migrated information about the nonpriority program from the INS “Blue Sheets” to the published “White Sheets,” signifying the newly public nature and existence of the program.
The Evolution of Deferred Action: 1975-1997
In 1975, following the Lennon case, the INS issued guidance on deferred action under its "Operations Instructions." The governing section stated: "(ii) Deferred action. In every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category." The Operations Instructions also listed factors that should be considered in determining whether a case should be designated for deferred action:
When determining whether a case should be recommended for deferred action category, consideration should include the following: (1) advanced or tender age; (2) many years' presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States effect of expulsion; (5) criminal, immoral or subversive activities or affiliations recent conduct. If the district director’s recommendation is approved by the regional commissioner the alien shall be notified that no action will be taken by the Service to disturb his immigration status, or that his departure from the United States has been deferred indefinitely, whichever is appropriate.
***
If we think about President Obama’s use of DACA, he appears to have considered “tender age,” many years of presence in the U.S., effect of expulsion, and (lack of) criminal or subversive activities. In other words, he followed pre-existing guidelines.

No comments: