Prosecutorial Indiscretion

On June 15, 2012, hundreds of thousands of foreign nationals living illegally in the United States turned on their television sets to hear that they had become eligible for (1) a renewable two-year deferral of removal from the country and (2) a work permit.

While this may seem like a big change for those immigrants, the focus here will not be on what it might do for them, but how it was done, and why.

How do you think it was done? Choose one of the following: (a) Congress passed a new law and the president signed it, (b) the Supreme Court struck down an existing law, (c) the president issued an executive order, or (d) none of the above.

If you chose (c), it would be understandable, as it was President Obama who announced this change in front of the cameras outside the White House. There was, however, no executive order. An executive order cannot be used to overturn an existing law. On September 28, 2011, President Obama told a group of Hispanic journalists that “this notion that somehow I can just change the laws unilaterally is not true. The fact of the matter is there are laws on the books I have to enforce.” The rest of the transcript is here

The correct answer is (d), none of the above, which leaves the question, “Then how?”

On June 15, Janet Napolitano, Secretary of the Department of Homeland Security, sent a memo to three of her underlings directing them to “exercise prosecutorial discretion” in the cases of certain “low priority” illegal aliens, “effective immediately.” (Yes, she ordered them to exercise discretion.) The memo enumerates the criteria to be used to determine which illegal immigrants will get the deferrals and work permits. The memo is here

That’s right; it was done by interoffice memo.

It seems odd, doesn’t it? When I hear of prosecutorial discretion, I think of cases in which discrepancies in the chain of custody of a bag of pot lead the prosecutor not to bring charges or perhaps to drop charges, that sort of thing. But in this case, according to the June 15 New York Times, “more than 800,000 young people” are now eligible for deferrals and work permits because an unelected bureaucrat fired off a memo. Upon reading that, I had three thoughts: first, “That’s quite a few people.” Then, “That’s a pretty sweeping change.” And finally, “That’s some discretion.”

Much more HERE (The author argues that the USA is a scofflaw society generally)





Feds Begin Granting Legal Status to Illegal Immigrants under Obama’s Amnesty Edict

Federal immigration authorities have begun granting tentative legal status to illegal immigrants under President Obama's deportation halt - and in some cases are even ignoring the administration's eligibility rules to stop deportations for those who shouldn't qualify, according to the chairman of the House Judiciary Committee.

Rep. Lamar Smith, Texas Republican, said he's learned some illegal immigrants who have been in the U.S. less than five years have had their deportations canceled, even though Mr. Obama and Homeland Security Secretary Janet A. Napolitano had listed the five-year mark as one of their criteria.

Mr. Smith also obtained documents laying out how U.S. Customs and Immigration Enforcement (ICE) officers should actively search for illegal immigrants who are "apparently eligible" to have their cases dropped. Those illegal immigrants then would be granted tentative status.

"President Obama is granting amnesty to illegal immigrants behind Americans' backs," Mr. Smith said. "Although administration officials told congressional offices that it would take 60 days to implement the president's amnesty plan, internal ICE documents show that illegal immigrants have already benefited from it, even though there are no standards in place."

Paper trail

The Washington Times reviewed the documents, which also include a memo from U.S. Citizenship and Immigration Services, the agency that will judge most of these cases, and which said it's not taking applications until Aug. 15.

The agency didn't return a call seeking comment, but ICE spokeswoman Gillian Christensen said the policy was always intended to apply immediately to illegal immigrants already in the deportation system - which are the ones ICE deals with.

U.S. Citizenship and Immigration Services will eventually put in place a more formal process for illegal immigrants to come forward and proactively head off deportation.

Ms. Christensen said ICE will end up with a relatively small share of the eventual cases, and their review is easier because the agency already had begun using broad prosecutorial discretion last year.

"ICE is only reviewing cases for deferred action of individuals that are currently in removal proceedings or who were/are part of the agency's larger prosecutorial discretion review," she wrote in an email.

Obama's new orders

Last month, Mr. Obama and Ms. Napolitano said they would unilaterally halt deportations for illegal immigrants who would have qualified for the Dream Act - legislation that never passed Congress but would have granted a path to citizenship to many illegal immigrants age 30 and younger.

To avoid deportation under the new rules, illegal immigrants would had to have been brought to the U.S. by age 16; graduated high school or earned an equivalency degree; not been convicted of major crimes; and been in the U.S. for at least five years.

Those granted a stay of deportation are given permission to work in the U.S. - which could lead to hundreds of thousands of new, legal workers entering the economy.

The program has come under fire from both sides. Some immigrant-rights activists have said they'd be reluctant to recommend illegal immigrants come forward, saying the program doesn't yet have the kinds of assurances they need.

Critics on the other side, meanwhile, say it's drawn too broadly. They also wonder what proof ICE and U.S. Citizenship and Immigration Services officers will ask for. The ICE guidance Mr. Smith obtained doesn't lay out any standards for those documents, and he said that's an invitation to fraud.

He also said he has learned ICE has halted deportations for illegal immigrants the agency knows have been in the U.S. for less than five years.

"Amnesty has been granted to those who have been here for a shorter or even unknown period of time," Mr. Smith said.

Ms. Christensen, the ICE spokeswoman, said the agency has broad authority to halt deportations on a case-by-case basis, even when illegal immigrants fall short of the new standards, especially in "humanitarian" cases in which the people in question were brought to the U.S. as children.

"As part of ICE's overall effort to focus the immigration system on public safety threats, border security and public safety, and in keeping with the spirit of the secretary's memorandum, deferred action has been granted on a case-by-case basis to some individuals whose cases may differ from the specific criteria set forth in the memorandum," Ms. Christensen said.

As for documents, she said ICE officers are already trained in what documents to ask for and how to evaluate them as part of their jobs. Acceptable documents they can request include passports, visas, school or medical records, and leases, she said.

SOURCE