Monday, July 18, 2011

Using judgment in enforcing immigration deportations

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.
Because of the use of discretion, minors are treated differently in the criminal system, and traffic violators and murderers receive different punishments. The use of judgment and proportionality is deeply ingrained and commonly accepted in our legal system [see Department of Justice]. But there is one notable exception: the enforcement of immigration law.

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?
But, unfortunately, House Judiciary Committee Chairman Lamar Smith (TX-R) is indicating that the long accepted ideals of discretion and proportionality in law enforcement should not apply to immigration. Last week, Smith introduced the “Hinder the Administration’s Legal Immigration Temptation Act” (HALT) of 2011. It tries to invalidate the legal authority of the executive branch to use its discretion to improve and implement laws.

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


America said...

It is very sad that these politicians are playing with our lives and the futures of our children like toys. I don't understand why the flip-flop and why it is so difficult for these people to do the right thing by the people vs by the big corporations. It's disgusting and really upsetting.

Vicente Duque said...

Professor Kevin Johnson, Dean of U.C. Davis School of Law, strongly scolds Carol Swain, professor of Political Science and Law at Vanderbilt University, for writing "Why the Supreme Court should uphold S.B. 1070" -
Supreme Court of the United States Blog -
By Kevin Johnson -
Dean of University of California at Davis School of Law -
Tuesday July 19th, 2011

Some excerpts :

Although not feeling a need to elaborate on my legal analysis or predictions, I do feel compelled to register disagreement with the rhetorical approach of one of the contributions. Professor Carol Swain (“Why the Court should uphold S.B. 1070”) states that “[c]riticisms of S.B. 1070 seem to be politically motivated and orchestrated by groups and foreign entities that benefit directly or indirectly from lax immigration enforcement.” This blunt accusation unfortunately denigrates the good faith legal concerns with Arizona’s foray into immigration regulation. Indeed, several contributions to the symposium, at least in my estimation, raise valid legal concerns with S.B. 1070 and do not appear to be “orchestrated” by outside agitators.

Professor Swain’s summary defense of S.B. 1070 blames “excessive crime, homelessness, and high employment” on “the uncontrolled influx of illegal aliens across the Southwestern border,” with Arizona’s “capital city of Phoenix dubbed as the `kidnapping capital of America.’” Given the hyperbole, I almost expected a reference to Governor Jan Brewer’s fabricated claim of headless bodies in the Arizona desert as one of the reasons the state needed S.B. 1070.

These strong, unqualified, and charged claims hide the fact that these are deeply contested propositions with which many, probably most, respected immigration scholars would disagree. A quick perusal of the evidence is to the contrary. For example, an in-depth USA Today investigative report last week concludes that, despite the hyperbolic claims by politicians of a border “crime wave,” crime rates in border cities have been decreasing for several years.

And how can one colorably contend that there has been an “uncontrolled influx of illegal aliens” when the undocumented population has decreased by roughly a million people over the last few years?

Despite the fact that the Obama administration has deported more noncitizens than any presidency in U.S. history – close to 400,000 last year, Professor Swain states emphatically that the U.S. immigration laws “are not being enforced by the federal government,” and that the resulting “crisis . . . threatens the sovereignty of the nation.” That is because, in her words, “President Obama, the Department of Justice, and the Department of Homeland Security have sided with interest groups who favor open borders and amnesty.”

In the immigration debate, inflammatory rhetoric all too often obscures the truth — that the claims about the alleged litany of horribles brought by the “invasion” of immigrants simply are not substantiated by the facts. Unfortunately, this kind of approach is characteristic of far too much of the national debate over immigration and demonstrates the difficulties in having an informed national dialogue on this all-important topic – or apparently even a discussion among lawyers and professors about how the Supreme Court might rule on the constitutionality of Arizona’s S.B. 1070.

To achieve true immigration reform, what the nation needs is an open and fair discussion, based on the facts, of the issues surrounding U.S. immigration law and its enforcement. It seems to me that academics, policy-makers, and commentators should strive to promote and facilitate such a discussion of the issues, not foment divisions among us through mean-spirited sloganeering. Careful analysis, learning and adhering to the facts, and listening to – not denouncing – people’s concerns are what are necessary.