McCain, Hatch, Rubio offer optimism on immigration on return for lame duck

Posted on by Ruby Powers in DREAM Act, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

By Cameron Joseph – 11/13/12 08:25 PM ET
Entire Article

Three key Senate Republican players on immigration returned to a lame-duck session of Congress on Tuesday offering optimism that a deal on immigration could be made next year.

Sen. John McCain (R-Ariz.) said he believes it’s “very likely” the Senate will come up with a comprehensive immigration bill that could include enforcement and a way of dealing with illegal immigrants in the country.

A pathway to residency or citizenship for those illegal immigrants was the major stumbling block to immigration reform efforts in the last decade.
Sen. Orrin Hatch (R-Utah) said “everything ought to be on the table” in the immigration talks, while McCain said there’s a “sense of urgency” in the GOP to deal with the issue.

Sen. Marco Rubio said he was “hopeful” lawmakers would be able to work on something, but added his position remains that Congress should take action on strengthening border security first.

“As I’ve said, in my opinion, the first steps in all of this is to win the confidence of the American people by modernizing the legal immigration issue and by improving enforcements of the existing law,” he said. “And then, obviously, we’re going to have to deal with 11 million people who are here in undocumented status.

“I think it’ll be a lot easier to figure that out if we do those other steps first. But like I said, there are going to be a lot of opinions on this.”

Republican soul searching on immigration has stepped up after President Obama’s victory in last week’s presidential election. Obama soundly defeated Republican nominee Mitt Romney among Hispanic voters.

In the wake of the election, conservative talk-show host Sean Hannity and pundit Charles Krauthhammer have both urged Republicans to work on an immigration plan that would include a pathway to residence for those in the country illegally.

“There’s a sense of urgency in the Republican Party for obvious reasons, and I’m sure that everybody’s ready to deal. But the specifics? Too early,” McCain said Tuesday when asked about a comprehensive bill that included a pathway to citizenship.

“There are a lot of very important legal considerations that have to be made, but I’ve always been empathetic towards resolving this problem one way or the other,” said Hatch.

McCain had abandoned his support for a comprehensive bill during a 2010 primary challenge from former Rep. J.D. Hayworth (R-Ariz.).

But on Tuesday, he sounded more like the McCain who championed a comprehensive immigration reform plan backed by President George W. Bush.

“Oh, I think it’s very likely that we get it resolved, but there are going to be some tough negotiations,” he said.

Rubio, a Hispanic who is trusted and beloved by the GOP base, could be the most important player to watch in the negotiations.

He seemed more hesitant to embrace the concept of a big package than McCain or Hatch but didn’t close the door on a single, comprehensive bill. In the past, that’s usually meant a pathway to citizenship for undocumented immigrants in the U.S., stricter border enforcement, a temporary worker program for industries such as agriculture and a crackdown on those who hire undocumented immigrants.

“People are interested in it. It’s going to take some time,” he said. “It’s an important issue for the country economically, it behooves us to have a 21st century immigration policy.”

Rubio said he “didn’t have anything to announce today” on how involved he’ll be with the issue, but said he was “hopeful we’ll be able to work on something.”

The Florida senator had begun to work on a Republican version of the “DREAM Act” last year before President Obama ordered temporary visas be given to some undocumented immigrants brought here as children.

Hatch, an original sponsor of the DREAM Act, voted against it in 2010, largely because of concerns about a 2012 Tea Party primary challenge.

This story was posted at 8:25 p.m. Tuesday and updated at 9:13 a.m. Wednesday.


Obama Promises Immigration Reform if Re-Elected, According to Iowa Paper

Posted on by Ruby Powers in Immigration Law, Immigration Trends, Legislative Reform, State and Local Immigration Rules Leave a comment

October 24, 2012

Washington –  In an interview with the Des Moines Register, U.S. President Barack Obama said that if he wins the election in two weeks it will largely be thanks to his strong lead among Latino voters.

Read more: http://latino.foxnews.com/latino/politics/2012/10/24/obama-promises-immigration-reform-if-re-elected-according-to-iowa-paper/#ixzz2AK5xFMID


Romney adviser leading immigration lawsuit

Posted on by Ruby Powers in DREAM Act, Immigration Trends, Legislative Reform Leave a comment

An informal adviser to Republican Mitt Romney is representing U.S. Immigration and Customs Enforcement employees suing the Obama administration over its plan to stop deporting many young illegal immigrants and grant them work permits.

By ALICIA A. CALDWELL

Associated Press

WASHINGTON —

An informal adviser to Republican Mitt Romney is representing U.S. Immigration and Customs Enforcement employees suing the Obama administration over its plan to stop deporting many young illegal immigrants and grant them work permits.

Kris Kobach, the Kansas secretary of state, filed the lawsuit on behalf of 10 ICE employees Thursday in federal court in Dallas. The 22-page filing contends that the Obama administration’s Deferred Action for Childhood Arrivals plan violates federal law and forces ICE employees to break the law by not arresting certain illegal immigrants. Homeland Security Secretary Janet Napolitano and ICE Director John Morton are named as defendants.

“It places ICE agents in an untenable position where their political superiors are ordering them to violate federal law,” Kobach said. “If they follow federal law, they will be disciplined by their superiors.”

Kobach, who also advised Arizona lawmakers on the state’s controversial immigration bill, said he is representing the employees as a private lawyer and not in his capacity as a Kansas state official. He wrote in the lawsuit that ICE agents have been ordered not to arrest illegal immigrants who claim to be eligible for the administration’s new deportation policy.

Kobach also was a delegate to the platform committee for next week’s Republican National Convention.

In June, Napolitano and President Barack Obama said that some illegal immigrants could avoid deportation and be granted a work permit for up to two years. Under the program, immigrants have to prove that they arrived in the United States before they turned 16, have been in the country for at least five years, are 30 or younger, are in school or have graduated or have served in the military may be eligible. They cannot have a criminal record or otherwise be considered a threat to public safety or national security.

Matt Chandler, a DHS spokesman, said the department uses prosecutorial discretion to focus its efforts on arresting and deporting criminal immigrants, and the newest policy is in line with that effort.

U.S. Citizenship and Immigration Services started accepting applications for the program on Aug. 15. Immigrants have to pay a $465 paperwork fee for the program.

DHS officials have not said how many people might be eligible under the program, though the Pew Hispanic Center and others have estimated that about 1.7 million people could be covered.

An internal DHS document obtained by The Associated Press shows that the government estimated receiving about 1.04 million applications in the program’s first year, with about 890,000 being immediately eligible.

The document estimated that the program could cost between $467.7 million and $585.4 million. The department anticipated collecting about $484.2 million in fees.


Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities

Posted on by Ruby Powers in DREAM Act, Immigration Law, Immigration Trends, Interior Enforcement Leave a comment

WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (atwww.ice.gov), or DHS’s website (at www.dhs.gov). Beginning Monday, individuals can also call USCIS’ hotline at             1-800-375-5283       or ICE’s hotline at             1-888-351-4024       during business hours with questions or to request more information on the forthcoming process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

For more information on the Administration policy reforms to date, please see this fact sheet.

###


Fact Sheet: Transforming the Immigration Enforcement System Release Date: June 15, 2012

Posted on by Ruby Powers in DREAM Act, Immigration Law, Immigration Trends, Interior Enforcement, Legislative Reform Leave a comment

Direct Link

Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system.  As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders, we have taken a number of steps to transform our immigration enforcement system.

  • April 30, 2009: U.S. Immigration and Customs Enforcement (ICE) released a new worksite enforcement strategy which moved away from large worksite raids and toward more effective auditing and investigations.
  • July 10, 2009: Secretary Napolitano announced reforms to the 287(g) program, including increased training, data collection, and the standardization of the agreements with state and local law enforcement agencies.
  • August 2009: DHS created two new offices within ICE, the Office of Detention Policy and Planning as well as an independent Office of Detention Oversight, to focus on oversight and provide specific attention to detainee care. ICE also established two advisory boards of national and local stakeholders.  These working groups have met for nearly three years and provide feedback to ICE on a variety of detention issues. You can learn more about the numerous detention reforms implemented by ICE, by clicking here.
  • September 2009: ICE issued new protocols to increase transparency in the reporting and notification of detainee deaths.
  • January 4, 2010: ICE revised its policy for granting parole to individuals found to have a credible fear of persecution if they establish their identities, pose neither a flight risk nor a danger to the community, and have no additional factors weighing against release.
  • June 30, 2010: ICE Director John Morton issued a Memorandum entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” articulating ICE’s commitment to prioritizing the use of its enforcement personnel, detention space, and removal resources to promote national security, public safety, and border security—with the removal of aliens who pose a danger to national security or a risk to public safety constituting the highest enforcement priority.
  • July 2010: ICE launched the first-ever online detainee locator system enabling attorneys, family, and friends to find a detainee in ICE custody and to access information about the facility, including its location and visiting hours.
  • August 20, 2010: ICE issued a Memorandum entitled “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions”—outlining a framework for ICE to request expedited adjudication of an application or petition (I-130) for an alien in removal proceedings that is pending before U.S. Citizenship and Immigration Services (USCIS) if the approval of such an application or petition would provide an immediate basis for relief for the alien.
  • June 17, 2011: On June 17, 2011, ICE Director Morton issued a new memorandum that provides guidance for ICE law enforcement personnel and attorneys regarding their authority to exercise prosecutorial discretion where appropriate to ensure greater consistency in the treatment of individuals who do not fit within ICE’s enforcement priorities.
  • June 17, 2011: ICE, in consultation with the DHS Office of Civil Rights and Civil Liberties, developed a new policy designed to protect victims of domestic violence and other crimesand to ensure that these crimes continue to be reported and prosecuted. This policy directs all ICE officers and attorneys to exercise appropriate discretion to ensure that victims of and witnesses to crimes are not penalized by removal.
  • August 18, 2011: ICE initiated an unprecedented review of all immigration cases pending in the immigration courts and incoming cases. fact sheet
  • November 7, 2011: USCIS issued revised guidance on referral of cases to ICE and issuance of NTAs.
  • November 17, 2011: ICE issued further guidance on how they would conduct the case by case review.
  • January 4, 2012: ICE issued a new policy related to transferring individuals between detention facilities that established that if an individual has family-members or counsel nearby, he/ she will not be transferred absent extraordinary circumstances.
  • February 2012: ICE issued its detention standards, now known as the Performance-Based National Detention Standards 2011, to improve medical and mental health services, increase access to legal services and religious opportunities, improve communication with detainees with limited English proficiency, improve the process for reporting and responding to complaints, and increase recreation and visitation.
  • February 7, 2012: ICE announced the creation of their first Public Advocate to assist individuals and community organizations in addressing complaints and inform stakeholders of ICE policies and initiatives.
  • March 13, 2012: ICE opened its first-ever designed and built civil detention center in Karnes City, Texas. The Karnes County Civil Detention Center is a civil immigration detention facility for low-risk, minimum security detainees.
  • May 2012:  ICE, in collaboration with the DHS Office for Civil Rights and Civil Libertiescreated new trainings for state and local law enforcement on issues related Secure Communities. The goal is to provide actionable information to state and local law enforcement about the civil rights and civil liberties issues that may arise when ICE begins using federal information sharing capability through Secure Communities in their jurisdictions.
  • May 2012: ICE, after consultation with the DHS Office for Civil Rights and Civil Liberties, promulgated a new directive on Sexual Abuse and Assault Prevention and Response in order to comprehensively address and clarify procedures at the agency level relating to investigation, coordination, and response of sexual assault and abuse in immigration detention facilities.
  • May 17, 2012: DHS announced it would undertake its own rulemaking to apply the Prison Rape Elimination Act (PREA) to immigrant confinement facilities, building upon the zero tolerance policy for sexual assault and abuse in confinement facilities that DHS previously adopted.
  • June 15, 2012: Secretary Napolitano announces that effective immediately, certain young people who were brought to the United States through no fault of their own as children, do not present a risk to national security or public safety, and meet several key criteria will be eligible for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal. Click here for the press release.

Obama Offers Two Years of ‘Deferred Action’ to Illegal Immigrants

Posted on by Ruby Powers in DREAM Act, Immigration Law, Immigration Trends, Legislative Reform Leave a comment

Those who are in the U.S. illegally, but meet certain criteria, won’t face prosecution

Some young illegal immigrants living in the United States will be eligible for a reprieve from federal prosecution, according to a Friday announcement by the Obama administration.

It’s a move ripe with election year politics as both President Obama and Republican challenger Mitt Romney ramp up efforts to woo Hispanic voters ahead of the November presidential election.

Republicans have made hay out of the fact that Obama promised comprehensive immigration reform would be one of his top priorities in the White House and yet, in reality, he prioritized healthcare legislation instead. They say he never delivered for Latinos.

[See a collection of political cartoons on immigration.]

Friday’s announcement, made by Department of Homeland Security Secretary Janet Napolitano, is certainly aimed at placating disappointed Hispanic voters but also continues an effort her agency has made to change America’s deportation priorities.

Napolitano said the move is “consistent with our existing use of prosecutorial discretion” despite cries from some conservatives that it is unconstitutional.

Immigrants who were brought to the United States before the age of 16, who have lived here for at least five years, are in school, have a high school diploma or GED, or were honorably discharged from the military and are younger than 30 are eligible for the “deferred action,” she said during a conference call with reporters. In addition to deferred action on deportation, many young illegal immigrants would be eligible for work permits.

Verifiable documentation must be provided, and those with felonies or extensive criminal records are not eligible.

[Romney ‘Still Deciding’ on Immigration Stance]

“Over the past three years, the administration has undertaken an unprecedented effort to transform our nation’s immigration enforcement system into one that focuses on public safety, border security, and on the integrity of the immigration system,” Napolitano said.

The Obama administration, which has already deported more illegal immigrants than did the George W. Bush administration, has focused its efforts on those who pose a danger to national security, are a risk to public safety, or those with serious or multiple criminal convictions, she said.

About 90 percent of last year’s deportations applied to those kinds of illegal immigrants, Napolitano said. Immigrations enforcement officials were also given the discretion to close low-priority cases last year so they could focus resources on dangerous individuals.

Napolitano was also quick to point out that this deferred action, which would initially be for a period of two years, would “not provide permanent lawful status or start them on a pathway to citizenship” and “is well within the framework of our existing laws.”

“This grant of deferred action is not immunity. It is not amnesty,” she said. “It is an exercise of discretion so that these young people are not entering the legal system. It will help us continue to streamline immigration enforcement.”

[Rubio’s DREAM Act Gamble]

Sheriff Joe Arpaio of Arizona, an outspoken critic of the Obama administration, said on CNN on Friday that the move amounted to a “first step towards amnesty.”

“I’m just more concerned about the politics of this,” he said. But, he added, if the president’s move prompts Congress to move forward with an immigration reform plan, it’s a good thing.

Arizona is one of several states to enact aggressive state policies on removing illegal immigrants because they feel the federal government has failed to adequately address the problem. The Supreme Court is expected to rule on the constitutionality of Arizona’s immigration law this summer.


Obama pledges immigration reform early in 2nd term

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Obama pledges immigration reform early in 2nd term

CARTAGENA, Colombia (AP) — In his most specific pledge yet toU.S. Hispanics, President Barack Obama said Saturday he would seek to tackle immigration policy in the first year of a second term. But he cautioned that he would need an amenable Congress to succeed.

“This is something I care deeply about,” he told Univision. “It’s personal to me.”

Obama said in the television interview that he would work on immigration this year, but said he can’t get support from Republicans in Congress. Obama also tried to paint his Republican presidential challenger, Mitt Romney, as an extremist onimmigration, saying that Romney supports laws that would potentially allow for people to be stopped and asked for citizenship papers based on an assumption that they are illegal.

“So what we need is a change either of Congress or we need Republicans to change their mind, and I think this has to be an important debate during — throughout the country,” Obama said.

Romney aides have said that the former Massachusetts governor supports laws that would require employers to verify the legal status of workers they employ.

“President Obama only talks about immigration reform when he’s seeking votes,” said Romney spokeswoman Andrea Saul. “Then-candidate Obama promised to tackle immigration reform in his first year. More than three years into his term, America is still waiting for his immigration plan.”

Hispanics are an increasingly important voting bloc in presidential elections. Obama won a sizable majority of the Hispanic vote in the 2008 election and his campaign is hoping for similar results this November.

Obama spoke to Univision, a network widely watched by Latinos in the United States, while in Colombia for the Summit of the Americas.


DHS: Prioritizing Enforcement and Exercising Prosecutorial Discretion

Posted on by Ruby Powers in DREAM Act, Immigration Law, Interior Enforcement, Legislative Reform Leave a comment

August 22, 2011

American Immigration Council

 For Immediate Release

DHS: Prioritizing Enforcement and Exercising Prosecutorial Discretion
Experts Welcome New Guidance, But Agree the Devil is in the Details

 

August 22, 2011

 

Washington D.C. – Today, the American Immigration Council hosted a briefing to discuss the Department of Homeland Security’s (DHS) announcement last week that it would issue agency-wide guidance to make certain that prosecutorial discretion is exercised in a manner that ensures the agency’s enforcement resources are used to remove those who pose the greatest risk to public safety. DHS also announced the creation of a joint committee with the Department of Justice (DOJ) that will review nearly 300,000 cases currently in removal proceedings to determine which ones are low priority and can be administratively closed in order to begin unclogging immigration courts.  While it is unclear how these proposals will play out in practice, the federal government must continue to assert its authority over immigration given the rise of state legislative initiatives that seek to impose different priorities on immigration enforcement.

Melissa Crow, Director of the Legal Action Center at the American Immigration Council discussed the practical implications of the use of greater prosecutorial discretion and had a warning for immigrants not in removal proceedings:

“Prosecutorial discretion is not a new concept, and is exercised on a daily basis by law enforcement agencies.  It refers to the authority of a law enforcement agency or officer to decide whether – and to what extent – to enforce the law in a particular case. Prosecutorial discretion can take a variety of forms, depending on the nature of the case involved.
DHS has also been clear that last week’s announcements do not impact individuals who are not currently in removal proceedings. Thus, ‘DREAM’ students and others unlawfully present in the United States, but not in removal proceedings should not actively seek out the immigration authorities. Since there are no guarantees that an individual removal case will be administratively closed, anyone who seeks to be placed in removal proceedings could end up being deported.” 

 

Clarissa Martinez, the Director of Immigration and National Campaigns at the National Council of La Razadiscussed the Administration’s move:

“This is a huge step forward for our country. This means that DHS will be using its resources more effectively. For those attacking this approach, I would challenge them to say what should be prioritized over national security and public safety. Every law enforcement agency uses prosecutorial discretion to do just that.”

Javier Morillo-Alicea, President of Service Employees International Union (SEIU) Local 26 in Minnesota said:

 

“For years now we have reminded the Administration that their stated enforcement priorities of going after criminals—not law-abiding citizens—was not an on-the-ground reality. Last week’s announcement, if properly implemented, will give teeth to long-stated enforcement priorities which is an extremely important move on the part of the Administration. It is right on policy and it is right on politics.”

 

To listen to a recording of the briefing or view other resources on Prosecutorial Discretion see:

 ###

 

 

For more information contact Wendy Sefsaf at wsefsaf@immcouncil.org or 202-507-7524


Did the Obama Administration grant amnesty on June 17?

Posted on by Ruby Powers in Immigration Law, Interior Enforcement, Legislative Reform Leave a comment

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.


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