Fed appeals court halts deportation of 7 immigrants, puts new immigration directive to test

The 9th Circus thinks a memo is a law

A federal appeals court has put the Obama administration’s new immigration directive to the test by halting the deportation of seven immigrants alleged to be in the country illegally.

In a 2-1 ruling on Monday, the 9th U.S. Circuit Court of Appeals demanded the Obama administration explain whether the immigrants can avoid deportation because of two memos released last year by U.S. Immigration and Customs Enforcement director John Morton urging prosecutors to use “discretion” when deciding whether to pursue immigration cases.

Morton’s initial memo in June said prosecutors should take into account such factors as U.S. military service, criminal records, family ties and length of stay in the country when deciding whether to start formal deportation proceedings against undocumented immigrants. He issued another in November explaining further how to implement the guidelines.

Since then, though, immigration advocates and lawyers have been complaining that prosecutors have been too slow to call off deportation proceedings of immigrants meeting the criteria. The advocates view the appeals court’s rulings as a call to action.

“There is a real concern that the (June) memo is not being utilized to its full extent,” said Laura Lichter, the next president of the American Immigration Lawyers Association. “It sounded great at the time, but we are waiting for real progress.”

The court ordered the Obama administration to make a prosecution decision on seven people in five cases by March 19. The immigrants involved all appeared to have clean criminal records and appeared to meet the criteria of the memos, the appeals court judges concluded. The same three-judge panel had previously upheld deportation orders of all seven of the immigrants before Judges William Canby Jr. and Raymond Fisher agreed to reconsider the cases Monday in light of the new memos.

The identical two-paragraph order halting deportation proceedings in the five cases prompted a blistering dissent from Judge Diarmuid F. O’Scannlain and charges of “judicial activism” from a prominent Republican congressman.

“The Ninth Circuit’s decision to put five deportation cases on hold is an overreach of judicial authority and shows the inherent danger in the Obama administration’s backdoor amnesty policies,” said Rep. Lamar Smith, a Texas Republican who chairs the House’s Judiciary Committee. “The Ninth Circuit has a history of legislating from the bench and now they have turned the Obama administration’s prosecutorial discretion guidelines into an excuse for their judicial activism.”

O’Scannlain chided Judges Canby and Fisher for issuing an order he called an “audacious ruling” and said the judges lacked the authority to make such demands of prosecutors.

“The memoranda cited by the majority offer only internal guidance within the executive branch and squarely disclaim any suggestion that they might create any rights or benefits enforceable by the judiciary,” O’Scannlain wrote.

The American Immigration Lawyers Association says a survey it conducted in November showed that ICE’s 28 offices were applying the new guidelines in varying degrees, causing confusion for immigrants, their attorneys and even prosecutors handling the cases. The Association claimed that many of the offices weren’t using the guidelines at all.

The Obama administration says it wants to focus deportation proceedings on gang members, criminals and others thought to be more dangerous than pregnant woman, students and long-time residents with no criminal history.

ICE officials declined comment, other than to say Wednesday that “the agency is currently working with the Department of Justice to draft an appropriate response, which will be filed in due course with the court.”

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California immigration crackdown campaign to enlist American Legion members

Continuing a 93-year fight to control immigration, American Legion leaders are rallying military veterans to convince California voters they should require police to enforce federal immigration law.

"This country is for people who are here legally, who are born here, not for people who came here illegally, who kind of snuck in," said Bill Siler, adjutant of California's American Legion branch.

The Concord resident is co-sponsoring an initiative to keep it that way and plans to enlist help from the 88,780 Legionnaires statewide to help collect the more than half-million signatures needed to put it on the November ballot.

Although better known for its veteran advocacy, devotion to flag etiquette, baseball leagues and patriotic youth programs, the American Legion has lobbied for stricter immigration rules since its founding after World War I.

The group in 1920 won 75 percent of the vote for its first California proposition, strengthening state laws denying Japanese immigrants the right to own land.

The Legion then helped persuade Congress to pass national immigration quotas in 1924 and has sought immigration moratoriums and heightened enforcement every decade since.

"The American Legion, since its inception in 1919, has expressed concern that legal and illegal immigrants arriving in this country in large numbers would be unable to effectively assimilate into our society unless numerical quotas were established and enforced,"

This latest California volley aims, in part, to block liberal Bay Area counties from interfering with federal immigration prerogatives. It would require all counties to fully enforce Secure Communities, the network that alerts immigration agents whenever police book a deportable immigrant at a city or county jail.

"If they go to jail, it takes our taxpayer money to keep them here," Siler said. "If they are here illegally, they should be deported."

The measure would also deny driver's licenses to undocumented immigrants, which is already California law but in danger, according to proponents. And it would order sheriffs of the 20 counties with the worst cross-border gang activity to devote more resources to immigration enforcement.

Hundreds of the veterans voted to support it at their state convention in June.

"Hopefully they'll be the ones to get out the signatures to get it on the ballot," Siler said. If not, "I guess that will be the end of it."

Initiative author and co-sponsor Ted Hilton of San Diego has been drafting immigration control ballot measures since the early 1990s.

Voters have not been supportive of such drives in recent years.

* Hilton's 2009 proposal to revoke automatic citizenship for the U.S.-born children of illegal immigrants failed to find enough signatures.

* A Belmont Republican's 2010 initiative modeled on Arizona's immigration crackdown found too few voters willing to put it on the ballot.

* Assemblyman Tim Donnelly, R-Claremont, last month fell about 57,000 signatures short of qualifying a measure to revoke a law allowing financial aid for undocumented college students.
But none of those had a veterans organization promising heavy involvement.

"We have over 490 posts, local units up and down the state," said Siler, a 69-year-old Vietnam War Navy veteran who joined the American Legion 33 years ago and has managed the California branch for six years.

The Secretary of State's Office on Jan. 31 cleared the initiative for circulation. Proponents need 504,760 registered voters -- almost six times the Legion's declining statewide membership -- to sign the petition by June 28.

They call it the Protection Against Transnational Gangs Act and say it may block Santa Clara, Santa Cruz and San Francisco counties from refusing to hold some immigrant inmates for U.S. Immigration and Customs Enforcement.

"The criminal element, certainly they're going to go to states where there are more sanctuary ordinances or to counties with policies like Santa Clara County," Hilton said.

Most immigrants living in the U.S. illegally are neither gang members nor criminals and to call the immigration initiative an anti-gang measure may confuse voters about what it would actually do, said Pratheepan Gulasekaram, a Santa Clara University law school professor.

"It's a very shrewd move. Who doesn't want there to be less gang activity?" Gulasekaram said. The added enforcement would cost millions of dollars annually, according to the state's independent analysis.

Joining Siler and Hilton as a sponsor is conservative stalwart Tirso del Junco, an 86-year-old retired surgeon who led the California Republican Party in the early 1980s and was a University of California regent. He plans to tout the measure at the Feb. 24 through 25 statewide GOP convention in Burlingame.

It will be a tough sell even if the measure makes the ballot, Gulasekaram said.

"This sort of stuff tends to get passed only when you have the right partisan conditions, when you have a Republican-dominated electorate and a Republican-dominated Legislature, which we don't have in California."

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