The Government Shutdown and Immigration

The agencies handling immigration matters under the Department of Homeland Security are largely unaffected by the government shutdown.

U.S. Citizenship and Immigration Services (USCIS) is open for business for all fee for service activities. This means that applications and interviews for various benefits including the green card and naturalization are moving forward.

Immigration Customs and Enforcement (ICE) is also continuing its detention and enforcement operations.

Meanwhile, the Executive Office for Immigration Review (EOIR) or Immigration Court, which is under the auspices of the Justice Department, is only handling removal cases for individuals who are in custody. Removal cases for individuals who are not detained are being continued or held in abeyance.

The Washington Post has a great round up of how other government agencies are impacted by the shutdown.

Romney on DREAMers & A Tale of Three Immigrants

By: Danielle E. Huntley, Esq.  

As I said in my last post on discretion and DREAMers, our current immigration system is unstable and flawed because it is wholly dependent on the whims of whoever is in charge of the executive branch. Mitt Romney’s latest statements that, if elected, he would end the Deferred Action for Childhood Arrivals (DACA) program illustrates this point perfectly.

Romney stated first in the Denver Post:

"The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I'm not going to take something that they've purchased," Romney said. "Before those visas have expired we will have the full immigration reform plan that I've proposed."

His campaign then clarified his statements following a request by the Boston Globe:

Responding to a Globe request to clarify Romney’s statement to the Denver Post, Romney’s campaign said he would honor deportation exemptions issued by the Obama administration before his inauguration but would not grant new ones after taking office.

The DACA program rests not in a statutory or even a regulatory framework it exists with the stroke of an executive pen and can die by the same. Coverage of Romney’s remarks can be found here, here, here and here.

The discretion problem is further illustrated by three different illegal immigrants in the news: Jose Antonio Vargas, Praq Rado and Qing Xiong Liu. Mr. Vargas, a Pulitzer Prize-winning journalist turned undocumented immigrant activist, was arrested in Minnesota for driving without a valid license.  ICE declined to detain him or initiate proceedings against him. Mr. Rado was arrested by ICE on a train en route to the East Hampton Film Festival for a screening of a short film about his experience of coming to America. He was apparently ordered removed in 2007. Mr. Liu, a Brooklyn father of two small children, was on a bus to Indianapolis in search of work when his ID was checked by ICE who had pulled over the bus Mr. Liu was riding in for speeding. ICE detained him in an Ohio facility because he had not complied with a prior order of removal. Mr. Liu was recently released from custody and has been reunited with his family in Brooklyn.

Assuming that all three of these men have no criminal records or other mitigating factors against them, their disparate treatment is a result of which particular bureaucrat reviews their case. It creates a system that does not uphold the rule of law and is unfair to the immigrants, legal and otherwise, who interact with it.

DREAM Act-lite and the Rule of Law

By: Danielle Huntley, Esq.  

The coverage of the Obama administration’s policy change towards so-called DREAMers, illegal aliens who were brought here as children, has garnered significant media coverage. Coverage here, here and here.

In my view, what has been missing from the discussion is how a change like this is emblematic of an inherent problem in our system. It continues a trend of the government creating immigration “law” through executive orders, policy memorandums and updates to various operational manuals; none of which are subject to meaningful legislative review or the regulation making process.

What are the limits of presidential power and prosecutorial discretion? On the one hand this program could be stopped at any time – it is wholly within the whim of the executive branch to maintain it. It creates no affirmative rights, only a process to ask the government to ask for its discretion. Conversely, if a DREAMer is under a final order of removal and they benefit from this program, how is that action different from a warden releasing a prisoner from prison after she has been found guilty by a court and sentenced?

This policy change is beneficial for this subset of illegal aliens, but it stands in stark contrast to the many policy changes that have created burdens where none is legislatively authorized.

Prosecutorial Discretion in Immigration Cases?? Really?

By: Danielle E. Huntley, Esq.  

It is only in Wonderland that a state actor can say that they have prosecutorial discretion when they are not a prosecutor and have no statutory authority for discretion. Yet, as we see again, our current immigration system seems stuck in it.

Prosecutorial discretion is a valuable necessity for state and local District Attorneys, and federal prosecutors charged with prosecuting crimes.  It means that a prosecutor can choose not to prosecute someone, negotiate a plea bargain and drop charges among other actions. Prosecutorial discretion recognizes the need for flexibility when enforcing state or federal laws. If you have ever seen an episode of Law & Order where the prosecutor makes a deal with a defendant for their testimony against another defendant, you have witnessed prosecutorial discretion in action. Or if you hear on the news that the District Attorney has decided not to press charges against an individual, that is an exercise of prosecutorial discretion. Prosecutorial discretion is at its broadest at the beginning of the criminal process, and, ceases to exist once an individual has plead guilty or been convicted. This ending of prosecutorial discretion is vital in our democracy, because if prosecutorial discretion is unfettered, the rule of law becomes solely dependent upon the whims of individual state actors.

There is a great deal of confusion surrounding prosecutorial discretion in the enforcement of immigration law. The director of ICE, John Morton, released a memorandum on June 17, 2011 (the Morton memo) that instructs ICE personnel how to exercise prosecutorial discretion in the following situations – which the memo clearly states is not exhaustive:

• deciding to issue or cancel a notice of detainer;
• deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
• focusing enforcement resources on particular administrative violations or conduct;
• deciding who to stop, question, or arrest for an administrative violation;
• deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
• seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
• settling or dismissing a proceeding;
• granting deferred action, granting parole, or staying a final order of removal;
• agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
• pursuing an appeal;
• executing a removal order; and
• responding to or joining in a motion to reopen removal proceedings and to consider joining a motion to grant relief or a benefit.

Furthermore, the criteria used to decide whether to exercise prosecutorial discretion is neatly summarized in the first footnote of the Morton memo. It states:

“The Meissner memorandum’s standard for prosecutorial discretion in a given case turned principally on whether a substantial federal interest was present. Under this memorandum, the standard is principally one of pursuing those cases that meet the agency’s priorities for federal immigration enforcement generally.”

The memo goes on to give a long list of 19 broad, subjective factors that an ICE agent should use to determine whether to exercise prosecutorial discretion. These factors are so broad that it would not be difficult for most aliens in removal proceedings to make a colorable claim under one or several of the factors. The broadness of when prosecutorial discretion can be invoked, and what policies support its invocation, is so vast that it renders the rule of law in immigration enforcement tenuous at best.

This is particularly true when prosecutorial discretion can be exercised when the alien is under a final order of removal. If the alien is under a final order of removal, they have undergone a trial in immigration court in front of an immigration judge, and they have exhausted their administrative appeals and judicial remedies in federal court. Imagine if a criminal prosecutor could decide to drop all charges against a defendant who has been convicted by a jury of his peers and after all appeals had been exhausted– the rule of law would be meaningless. The prosecutorial discretion granted to ICE agents is that broad.

Prosecutorial discretion in immigration enforcement needs to be limited in the same way that it is limited for criminal prosecutors. Otherwise, the fair administration of the immigration laws of this country is rendered impossible. Unfettered “prosecutorial” discretion that can be exercised even after a final order of removal,  results in arbitrary decisions, wasted taxpayer dollars and utter dependence on bureaucratic whim.