Talk Border

Prosecutorial Discretion

Immigration law reaction
Immigration law reaction
Jose Machado, a student of Nicaraguan descent living in the Miami area, reacts Friday during President Obama's announcement on the new U.S. immigration law. | Photo: Roberto Koltun, Miami Herald via AP | Immigration Law, Barack Obama, Nicaragua, Flag, Alien,

Is Immigration Prosecutorial Deception

By now it is unlikely that you have not already heard about the speech given by President Obama this past Friday, June 15th when he announced that his administration would no longer seek to arrest or deport illegal aliens who, in essence, would have benefited by the DREAM Act. In fact, he stated that his administration would provide these illegal aliens with employment authorization even though nothing had happened to change their illegal status other than the decision of the administration to cynically invoke "prosecutorial discretion" to justify this newest assault on our nation's immigration laws that, at their foundation, are intended to protect American lives and American jobs.

On the morning of June 15th I received a number of phone calls and e-mails from a variety of people including journalists and the former Inspector General of USCIS (United States Citizenship and Immigration Services) the agency that adjudicates applications for a wide variety of immigration benefits including the conferring of lawful immigrant status and even United States citizenship upon aliens in the United States. One of the e-mails I received early on Friday morning was from Fox News Latino inviting me to provide an Op--Ed concerning my "take" on the impending speech that the President was to make later that day.

Needless to say I welcomed this opportunity to provide my perspectives about this matter. My commentary was posted on Sunday, June 17, 2012 on the Fox News Latino website, and can be read here.

Before you read my commentary you should know that prosecutorial discretion is a tactic that is used in law enforcement for certain purposes, but never to encourage lawlessness, especially where the laws we are discussing go to the heart of nearly every challenge and threat that our nation faces today. A reasonable example of prosecutorial discretion is the police officer who does not stop motorists who are exceeding the speed limit by a few miles per hour but is otherwise driving safely.

For the administration to not focus major efforts on not seeking to arrest and deport aliens who have no criminal histories would be reasonable provided that illegal aliens who are discovered to be present in the country would be placed under deportation proceedings to discourage illegal immigration would be a sensible approach to immigration law enforcement and, in fact, I had made precisely that recommendation to Senator Alphonse D'Amato when he was the Senior U.S. Senator from the State of New York and I worked with him and his staff to enact the Aggravated Felony Statute for criminal aliens back in the early 1980's.

Law enforcement needs to employ the concept of triage to make the most of limited resources. By not prioritizing noncriminal aliens but nevertheless arresting those who may be encountered during the course of routine investigations, still provides a deterrence against those aliens who would violate our borders and our laws. It also adds a measure of "randomness" into the equation so that terrorists and criminals as well as more "mundane" illegal aliens never know when their luck might run out and they will find themselves facing deportation from the United States.

Back then any alien who was deported and unlawfully reentered the United States would face no more than 2 years in prison. As a consequence, it was extremely rare to convince the U.S. Attorney to prosecute those aliens for the crime of un-lawful reentry. They would also invoke "Prosecutorial discretion" and not prosecute such illegal aliens because they realized that it was likely that even if convicted these aliens would be sentenced to "time served." Consequently unless these aliens had been repeatedly deported and/or had criminal convictions for felonies the federal prosecutors would decline prosecution. They expected that the INS (Immigration and Naturalization Service) the predecessor of ICE (Immigration and Customs Enforcement) would seek the deportation of such illegal aliens and, indeed, we did.

Although I was an INS special agent back then, I took it upon myself to reach out to Senator D'Amato and his staff to enact a change in law that would differentiate criminal aliens from noncriminal aliens. Ultimately, in part by convincing some 30 of my colleagues at the New York District Office to speak with the Senator and his staff over a six month period, the law was amended making unlawful reentry by an alien who had been convicted of felonies a separate and distinct crime with a maximum penalty of 20 years in federal custody. Because of this increase in penalty for reentry by criminal aliens, federal prosecutors across the country began prosecuting such criminal aliens in large numbers. In addition to our efforts, it must be noted that the then chief of investigations for the INS in New York, a gentleman by the name of Walter Connery who held the title, Assistant District Director for Investigations had shortly after our meetings with the senator, written a legislative initiative that paralleled our efforts to convince Senator D'Amato of the need to change the law. Walter is also an attorney and although he did not know what we had been to see the senator and we had no knowledge of his efforts until several months later when I discussed the new law with him and he told me about the interesting coincidence.

Now the administration is not only not seeking to arrest and deport these illegal aliens but provide them with employment authorization and, hence, providing them with temporary lawful status in the United States! This goes way, way beyond simply focusing limited resources on the area where it could have the most impact!

Barack Obama
Barack Obama

July 20, 2012 - President Barack Obama responds to question at a press conference in Mexico. | President Barack Obama, Mexico, Immigration, Alien,

There are many falsehoods contained in the President's speech and my commentary delves into the more serious of those deceptive statements.

The newest assault on the enforcement of our nation's immigration laws is one of a series of previous decisions that make a mockery of laws that are so fundamental to the safety and well being of our citizens. The administration filed lawsuits against the states of Arizona and Alabama for enacting immigration laws that essentially paralleled the immigration laws that the administration not only is willing to enforce but has shown utter contempt for. What you may not realize is that while many politicians have called for making E-Verify mandatory to prevent illegal aliens from getting jobs in the United States, every illegal alien who is provided with employment authorization will easily pass the E-Verify program and will have as much right to work in the United States as United States Citizens and lawful immigrants who may have waited for years in order to fulfill the legal requirements to be lawfully admitted into the United States!

In my judgement, the current policy encourages illegal aliens to enter our country in violation of law and makes a mockery of the lawful system that permits more than 1.1 million immigrants to enter our country each and every year. (This is far more than any other country on the planet accepts!)

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Updated Aug 12, 2017 12:14 PM EDT | More details


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