Did the Obama Administration
grant amnesty on June 17?Prepared by American Immigration Lawyers Association
On June 17, Immigration and Customs Enforcement (ICE) issued a new policy entitled “Exercising Prosecutorial Discretion…” clarifying how immigration officials should focus on the agency’s key priorities to pursue criminal immigrants who pose real threats to public safety and national security. Commentators, including a member of Congress and the union that represents immigration officers, have criticized the memo, calling it a grant of amnesty that shirks the Obama Administration’s duty to enforce immigration law. Last week, Congressman Lamar Smith (R-TX) sent a letter to all members in the House of Representatives stating that the June 17 “memo suggested that the agency take steps to legalize millions of illegal immigrants.”
Myth 1. The Administration’s “prosecutorial discretion” policy is a grant of amnesty
Ever since President Reagan signed a law in 1986 granting legal status for millions of undocumented immigrants, those in favor of more restrictive immigration laws have complained that Reagan should not have granted an “amnesty” to lawbreakers. In the past decade, every bill proposing to register undocumented immigrants and legalize their status-no matter how tough the enforcement provisions-have been labeled amnesty. Those same charges were leveled at ICE’s June 17 policy announcement. But nothing in that policy can be accurately described as even close to an amnesty. Most importantly, it does not authorize immigration officials to grant any immigrant legal status that is not already established in law. The policy reiterates ICE’s existing enforcement priorities and gives guidance as to how and when to apply them in the field in a variety of settings from the moment an agent speaks to a person through the point of a prosecutor deciding whether and how to appeal a decision by a judge.
Myth 2. The Administration is being soft on immigration enforcement.
Immigration enforcement has never been more vigorous. In the fiscal year that ended September of last year, ICE deported nearly 400,000 people, a record high. Last year, Congress granted the Administration’s request for an additional $650 million to provide increased border resources, including more border patrol agents, more surveillance equipment, and technology improvements. President Obama has also cited significant increases in the number of criminal aliens that have been apprehended and deported. Smart and effective enforcement does not mean picking up everyone on the streets dragnet-style. It requires targeting ICE resources to achieve the agency’s mission of enforcing the law and ensuring public safety and national security.
Myth 3. The Obama Administration has granted “deferred action”-effectively amnesty-to thousands of people.
In March, Homeland Secretary Janet Napolitano testified before Congress that DHS had granted deferred action in less than 900 cases in the previous fiscal year, fewer times than the previous administration. Deferred action is a decision by the government to suspend temporarily deportation proceedings against someone. Deferred action does not grant legal status or provide a path to legal permanent residency, and DHS can revoke it and reinitiate proceedings at any time. Typically deferred action has been granted to ameliorate hardship on a case by case basis both for people who may be eligible in the future for legal status and those who are not.
Since Napolitano testified, she has been accused of misleading the public. The Federation for American Immigration Reform, an advocacy group in support of more restrictive immigration policies, announced that DHS had, in fact, granted deferred action in 12,338 cases in 2010. Of those cases, however, 96 percent (or 11,796) were made to victims of domestic violence, human trafficking and serious crimes as part of the process for granting special visas to protect them, including many who are helping law enforcement in the investigation and prosecution of dangerous criminals. These special visas were authorized by Congress to prevent domestic abuse, human trafficking and other violent crimes, goals that have long had strong bipartisan support in Congress.
Myth 4. Prosecutorial discretion is a new invention of the Obama Administration.
ICE’s June 17 policy did not create anything new but affirmed a long-standing principle used by prosecutors and law enforcement officials nationwide to decide whether and how to enforce the law in a particular case. Every day, our nation’s law enforcement officials make decisions about who to arrest, who to prosecute, and what sentences to seek. In the past decade, administration officials under Presidents Clinton, Bush and Obama have issued more than a dozen memoranda outlining the practice. In 1999, 28 members of the House of Representatives from both parties, including Rep. Lamar Smith who now criticizes the policy, wrote to then-Attorney General Janet Reno encouraging the use of prosecutorial discretion in the enforcement of immigration law. The letter questioned why there were not policies in place to guide prosecutorial discretion in cases where deportation was “unfair” and caused “unjustifiable hardship” – for example, in cases of immigrants who came to this country as children or had U.S. citizen family members. The June 17 policy uses similar criteria to guide its officials.
Myth 5. The Administration is bypassing Congress and creating new immigration law.
Critics have suggested that ICE’s June 17 policy oversteps the Administration’s executive powers and usurps Congress’s authority to legislate. The Constitution delegates authority to Congress to make laws. The executive branch has the responsibility to implement those laws and must do so in a well-balanced manner consistent with the law. Historically, immigration officers, just as any other law enforcement officers, have exercised prosecutorial discretion to conserve finite enforcement resources and to prevent injustices. In a 2010 memo, Attorney General Holder explained, “[t]he reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws. Decisions about whether to initiate charges, what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing, are among the most fundamental duties of federal prosecutors.” The June 17 ICE policy does not grant new authority but simply seeks to consolidate, update, and clarify the more than a dozen prosecutorial memos that have been issued over the past decade. ICE is not usurping Congress’ authority; it is doing its job.