President Barack Obama has correctly assessed that his taking executive actions in regards to the implementation of today’s immigration laws are legally within his power to enact. Because he has acted within the confines of current immigration laws and precedence, his immigration executive orders are very limited in comparison to the comprehensive immigration bill that he would like to sign when ever the U.S. Congress representatives send him one.
It has taken me many hours to read multiple legal letters, briefs, memoranda, law review articles and newspaper comments to last a life time. In short, both sides have their arguments which support their points of view. In general, almost all of the legal discourse favors the President’s position by indicating that he acted within the boundary of prior codes and precedents set by previous administrations. The executive branch in administering the laws does have the power of “prosecutorial discretion” and the ability to take “deferred actions” in certain instances. For example, our President argued during his announcement on 11/20/2014 that he wanted to keep families intact (humanitarian reasons) as well as needing to prioritize the limited resources available to his office towards the deportation of criminals; the placing of additional law enforcement personnel, equipment and other technical support on the southern U.S. border instead of continuing to deport for a 3 year period, family members who have been illegally living in the US for over 5 years with children who are already American citizens.
After all the legal documents that I have read, I could find nothing that limits the President from deferring action on the deportation of illegal aliens at a specific number; nothing that requires the US congressional approval or the existence of recently legislated immigration laws; and nothing which prevents those who qualify for deferred action from applying for a work permit as all others have done in past administrations. The President’s use of “prosecutorial discretion” does not confer any rights, privileges, or recognition upon the illegal immigrants who qualify for “deferred action,” other than an acknowledgement that deportation will be delayed by a period of three years from the date of issuance. The “deferred action” to be granted within two intra-agencies under the auspices of the Department of Homeland Security (“DHS”), the parent agency of US CIS, does nothing more than acknowledge that an individual can delay deportation proceedings if an individual meets certain criteria established by DHS, the prosecutorial agency. On 11/18/2000, INS Commissioner, Doris Meissner on her last day of service after seven years, issued a memorandum to all personnel regarding the implementation of “prosecutorial discretion” which details the guidelines to be used by practitioners as a reference guide and which provides the framework for today’s rules. “Deferred action” is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
There is a fascinating story behind the catalyst for the current immigration rules being established after the 1970s which enmeshes the Beatle’s icon, John Lennon and his wife, Yoko Ono, in the heroic roles of having to fight a US government deportation order for John Lennon which was politically engineered by the Nixon team. Here is the rest of the story…The attorney for John Lennon and Yoko Ono, Leon Wildes, at Cardozo Law School along with son Michael Wildes, appeared as a guest lecturer to expound upon the historical Lennon case to an audience of Michael’s students in his law class. Excerpts as per the next several paragraphs and as recited by Leon Wildes of Wildes & Weinberg are as follows:
“I received a call in mid-January 1972 from Alan Kahn, who had been a classmate of mine at law school. He was house counsel to Apple Records–the recording company used by the Beatles and John Lennon. Kahn said, “Leon, I think that you’ll have a very interesting day if you have some time. We have real heavyweights here, John Lennon and his wife, Yoko Ono, who have some immigration problems, and I thought of calling you.”… I’m embarrassed to say that I said, “Alan, tell me, who is John Lennon?” He said, “Leon, never admit that you asked me that question.” On the way down to the Lennons’ Village apartment, he showed me a 1968 Certificate of Conviction issued by a British court, in which Lennon was convicted of possession of cannabis resin. I had no idea what cannabis resin was…
Yoko explained that she had come to the United States to find and get custody of her nine-year-old daughter, Kyoko, from a previous marriage (to Tony Cox, an American citizen). John Lennon said that he had come to the United States on a waiver of inadmissibility, which was available for temporary trips. He cited the humanitarian reason of accompanying his wife to testify in the custody proceedings for Kyoko. He also told me of his conviction for possessing marijuana. He said, “The first thing I want you to know, Leon, is that I didn’t do anything wrong. I had no drugs in my possession. The police planted them on me just as they planted them on Mick and George.” I was supposed to know who Mick and George were.
He also told me that he had been tipped off that the police were going to raid the apartment where he was staying, although he hadn’t known exactly when. He had cleaned the apartment, which belonged to some other musicians, and was not on drugs at the time and did not have any around, so he felt at ease…When the police did come, they broke the door in and charged John with possession of cannabis… John was advised by his counsel to plead guilty to possession of cannabis and pay the fine.
I recalled some criminal cases in which people were charged with possession of one drug and succeeded in getting the indictments dismissed because they were actually in possession of another. There was, to my mind, some distinction between the two, and I kept that fact in the back of my mind.
Finally, he said, “You know, they’re passing a new law in England now, the Uniform Rehabilitation of Offenders Act, which says that if five years go by without a reconviction for the same type of offense, that’s it! They erase the conviction for British purposes.”
After hearing John’s and Yoko’s stories, I knew that they really weren’t asking for too much. Yoko said that they were trying to stay for just a couple of more months, but would require an extension to do so. They had less than two weeks before they would have to leave the country or face deportation…
By the (first) hearing date, I had still received no opposing affidavits from the government. It was strange, because in my affidavit requesting the injunction, I alleged that there was a government conspiracy to remove Lennon for political reasons…
Later, I uncovered documents, under the Freedom of Information Act, that showed that Lennon was being selectively prosecuted for political purposes by the Nixon administration. A memo dated February 4, 1972, was forwarded to former Attorney General John Mitchell and Bill Timmons of the White House by Sen. Strom Thurmond, describing Lennon as a threat to the US government and the reelection campaign of Richard Nixon because of Lennon’s affiliations with members of the Radical Left, which was then trying to stimulate voter registration of 18-year-olds. The presidential election in 1972 was the first one in which 18-year-olds could vote, making 18- to 20-year-olds a very important constituency. I also uncovered a memo in which Marks is advised by Washington to deny all applications, to revoke the Lennons’ voluntary departure privilege, and to schedule the deportation hearing for March 16, 1972–strong evidence of prejudgment of the case for political purposes…
At the hearing, Judge Whitman Knapp called both counsels forward and said that the United States Attorney had received a call from Sol Marks saying that he would adjudicate the papers that day. The judge said, “You know I can’t order him to either approve or deny. He still has discretion to rule on these petitions.” I was satisfied, and my suspicions of a government conspiracy were confirmed by the fact that the INS did not file affidavits in opposition to my claim of a government conspiracy to remove Lennon….
At least with a denial, I know what my remedies are.” The judge agreed, and I got another adjournment of the deportation case. Later that day, both petitions were finally approved. John and Yoko had been declared “outstanding artists whose presence in the US was, in the opinion of the Attorney General, prospectively beneficial to the national culture”! It was truly ironic, because Attorney General Mitchell was one of the parties most active in attempting to deport John Lennon.
They could now apply for permanent resident status in their deportation proceeding. Even though the government thought that it would look bad denying those petitions, it still believed that it could proceed with deportation because in its estimation, no one with a drug conviction could qualify for permanent residence. If I could prove otherwise, I would be creating an unbelievable precedent.
Preparing for our first hearing in the deportation case, I called my opposing counsel, Vinnie Schiano at the Immigration Service, and told him how nervous John and Yoko were. He said, “Bring them up to my office, and we’ll calm them down before we go into the hearing.” They were soon very much at ease in the prosecuting attorney’s office, for he was quite an expert on Beatles music. Soon Vinnie whispered to me, “Leon, I don’t think they realize that I’m the prosecuting lawyer.” I said, “John, Yoko, it’s time to go into the hearing now, and you can feel relaxed because Vinnie here, he’s the prosecuting lawyer.” Lennon immediately grabbed a handkerchief from his pocket, dropped down on his knees, and started shining Schiano’s shoes!..” We survived the government’s motion to sever the two deportation cases and try them separately; their cases were to be tried together.
At another hearing, I needed to prove that cannabis resin was not marijuana. I was told by my friend Alan Dershowitz that Dr. Lester Grinspoon of Harvard Medical School was one of the best doctors in the country and an expert on marijuana. I called Dr. Grinspoon and asked, “Is cannabis resin marijuana or what?” “Oh,” he said, “cannabis resin is not marijuana. It’s hashish!”…The immigration judge allowed the testimony even though it was not customary in deportation proceedings, because Grinspoon was obviously such an important physician….
In March 1973, Immigration Judge Ira Fieldsteel finally reached a decision in the case. I got a call from my old friend Sol Marks, who said, “Leon, I’m having a press conference at which the decision will be read. We’re inviting you and Mr. Schiano, the prosecuting attorney, to be there and comment on the decision.” In his 38 years with INS, Sol Marks had never held a press conference…I called my clients and asked them to round up journalists from the music and underground press. I wanted to feed each friendly reporter a question to be asked of Sol Marks at his press conference…All my new friends from Rolling Stones and the other journalists started asking their questions.
The decision of the immigration judge was announced. Yoko was granted permanent-resident status, and John’s application was denied because of his conviction…
The judge asked, followed up by the prosecuting attorneys responses, “Mr. Marks, did you have to bring this deportation proceeding?” ..Oh yes. I’m required by law to do it…”Is there a procedure by which you might have avoided doing so, called the ‘non-priority’ program?” ..No, there’s no such procedure….”Were you told or encouraged by Washington to do this for any political reason?” Oh no, it was my own idea.” .. When I examined him in a federal court deposition, he admitted that his answers to those questions were untruthful….Later that week, we held our own press conference because it was time to file our appeal to the Board of Immigration Appeals (BIA). I arranged for it to be held at the Association of the Bar of the City of New York. Many high-profile people from the arts spoke. I gave a presentation on the law, what had been going on, and what we knew.
This case took me to federal court on four occasions, during the five-year period of its litigation. The first lawsuit (Lennon v. Marks, 1972) resulted in securing the approval of the Lennons as “outstanding artists.”…The second (Lennon v. Richardson, 73 Civ 4476, 1973) was under the Freedom of Information Act, in which I had requested documentation relating to the “non-priority program,” a humanitarian program that was not a part of the statute or regulations, and simply a matter of secret law. In discovery proceedings, I was successful in learning about the existence of the program, by which aliens who were fully deportable–including those with multiple convictions for serious drug offenses, murder, and rape–were nevertheless permitted to remain in this country because of extreme hardship. ( There were over 1,800 such cases as of 4/2003.) As a result of the suit, I was successful in obtaining such “non-priority” status for John Lennon, and the program was made available to other aliens who might wish to apply…
The third Federal District Court action (Lennon v. United States, 73 Civ 4543, 1973) was the one in which I sued Attorney General Mitchell, Assistant Attorney General Kleindienst, Immigration Commissioner Farrell, District Director Marks, and others, alleging selective prosecution…
Finally, I appealed the Deportation Order to the Board of Immigration Appeals and argued Lennon’s case in Washington. The BIA affirmed the Deportation Order and I appealed their decision to the US Court of Appeals (Lennon v. United States 527 F. 2nd 187, 1975)…
About two weeks before the Court of Appeals entered its decision, reversing the BIA decision to deport Lennon, we won our application for “non-priority” classification, so that John would be permitted to remain in the United States, even without obtaining permanent residence. We went to federal court four times, winning each case on the basis of a strategy conceived at my first meeting with John and Yoko more than five years earlier. John Lennon was able to obtain his green card.”
For me, this shows how a couple’s courage to act can have a ripple effect 40 years later. This is the case that started the ball rolling in the creation of immigration rules and legislation which have ended up being the basis of prior presidential immigration “executive orders.” This is how in November, 2014, President Barack Obama can be so certain that he is operating within strict legal parameters in issuing his Presidential immigration executive orders rescuing millions of families from being subject to separation.
NOTE: This is a posting of a previously published blog.
RELATED ARTICLES: See below for more information regarding John Lennon’s case.
[PDF]John Lennon Part 32 – USCIS www.uscis.gov/sites/d…United States Citizenship and Immigration Services
[PDF]john lennon’s uscis file www.uscis.gov/…/US…United States Citizenship and Immigration Services
[PDF]John Lennon Part 22 – USCIS www.uscis.gov/…/US…United States Citizenship and Immigration Services