Every day, law enforcement officials and judges exercise discretion. This is a long standing tradition. We're used to trusting the interpretation of the law to authorized officials. We take it for granted that authorities will use their judgment in matters such as:
- charging and sentencing decisions,
- weighing differing priorities and social values, and
- matching punishments with crimes.
Today, the need for discretion and proportionality is more important than ever in our antiquated and over-burdened immigration system. It's important to ensure that the government spends its limited resources on high priority cases. And immigrants who have a strong case for remaining in the U.S. ought to be able to do that, if current law provides for an avenue of relief.
To push that agenda, a wide range of organizations, including the American Immigration Council, have been asking the Obama Administration to use its executive authority to exercise discretion in the immigration realm. In June, Director John Morton of Immigration and Customs Enforcement (ICE) issued a memo outlining new guidance on the use of prosecutorial discretion in a wide range of circumstances. That memo signals a greater commitment to using limited resources to enforce immigration law wisely, with an understanding of the need for measured action and fairness in the immigration context. It is a good signal.
|Is Lamar Smith a better patriot than you?|
Apparently Smith believes a different administration will be worthy of such discretion. The HALT bill would sunset on January 21, 2013—the day after the next inauguration.
However, it's important to note that the HALT Act goes beyond limiting prosecutorial discretion. It also seeks to suspend long respected forms of immigration relief including Temporary Protected Status (TPS) [which was granted by the Obama Administration to Haitians after the recent devastating earthquakes] and family unity waivers [such as those that allow U.S. citizen military members to reunite with their undocumented spouses].
What’s very disappointing in all this is that Chairman Smith has actually advocated for the use of prosecutorial discretion in the past. The New York Times recently noted:
Back in 1999, Mr. Smith was one of several members of Congress who wrote the attorney general and the head of the Immigration and Naturalization Service, arguing that ‘unfair’ deportations had caused ‘unjustifiable hardship’ for otherwise law-abiding immigrants who had jobs and families and close citizen relatives. ‘True hardship cases call for the exercise of discretion,’ the letter said.So why the change in heart? Only Mr. Smith can answer that.
As it becomes increasingly clear that large numbers of people are no longer migrating to the U.S., our focus must shift. We must now consider those immigrants who are already living, working, and raising families in America. Congress and the public need to encourage and promote the Administration's understanding that immigration agencies must prioritize enforcement activities and exercise discretion when considering deportation.
Source: American Immigration Council
Image credit: Chuck Crow, The Plain Dealer