Wednesday, July 06, 2011

IMMIGRATION WITHOUT LEGISLATION: President Obama Won't Try to Get Immigration through Congress; Decides to Do It Anyway; ICE Union Votes No Confidence; Memo Undermines Enforcement of Existing Laws

Remember what President Obama told Sarah Brady about gun control:

President Obama is expanding gun control “under the radar,” he reportedly promised Sarah Brady. “I just want you to know we are working on it,” Brady recalled the President saying. “We have to go through a few processes, but under the radar.” (via; “Gun Control by Stealth,” Tait Trussel)

Lawmaking by the Executive through department policy and regulation, seems to be going on with the immigration issue as well as with Second Amendment rights.

Imagine the pre-memo discussion in the White House between the President and the ICE Director, John Morton:

O: John, I have an elegant solution for immigration but I really don't want to let Congress touch it.

JM: I understand Sir. If you send it to the Hill those rubes will just screw it up by legislating whatever the hell they want to. We'll have to do deals about all kinds of crazy, unnecessary stuff, like fences and border control. I know you just don't want to deal with it.

O: That's right John. They want to run things but they aren't President. I am.

JM: Yes Sir. How do you see the immigration problem Sir?

O: Our influx of foreign students, which is our pool of FVA members (Future Voters of America, heh, heh, wink, wink) from the south is on a downward trend with the violence on the border, and all that noise from Arizona and Texas and we haven't done anything lately to let them know down there that we are still open for business.

JM: I have an idea. I will just tell them, the field agents in ICE, that we are not going to arrest or deport anyone from now on. That'll hit the papers and blogs in Mexico like a free barbacoa ad on Mexican Independence Day. They'll be lining up at the border overnight.

O: That sounds like an elegant solution John. But what if it looks like I'm ignoring the Constitution?

JM: I'll lay off the responsibility on the agents and the prosecutors. I'll say that it is their choice, entirely their discretion, whether to do anything or not.

O: Yes, that's good, it won't be us, it will be them doing it. It would be better if the ICE guys got the message but the media was a little behind the curve, especially the blogger scum.

JM: Alright. I'll just issue the memo on Saturday, that's June 11th, the media will ignore it because they will be slugging down gin and tonic by the pool. The bloggers will all be beating their wives and polishing their pickups, but it will get the attention of the agents.

O: I think it will work. They'll choke on their beer, might lose a few if the Heimlich doesn't work. Oh well, broken eggs.

JM: Some of those guys just want to enforce laws. They just don't understand politics. If they exercise their discretion incorrectly I will just fire them.

O: Too bad. Elections have consequences, I mean the election we won had consequences, even if it was almost three years ago.

JM: It will freeze 'em like dropping a rattler in their shorts.

John Morton, Director of the US Immigration and Customs Enforcement issued the Memo entitled: 
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal ofAliens “ 
The memo was issued on July 17th, 2011 almost a year after the Fox News channel was apprised of the story and chastised the agency.  Apparently, having been busted, they held it for a year.

The following are a few excerpts from the memo. Here is a link to the entire memo. ICE Prosecutorial Discretion Memo

Because the agency is confronted with more administrative violations than its resources can address, the agency must regularly exercise "prosecutorial discretion" ifit is to prioritize its efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual. ICE, like anyother law enforcement agency, has prosecutorial discretion and may exercise"it in the ordinary course of enforcement1.When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of the enforcement authority available to the agency in a given case. “


When weighing whether an exercise ofprosecutorial discretion may be warranted for a given . alien, ICE officers, agents,and attorneys should consider all relevant factors, including, but not limited to the agency's civil immigration enforcement priorities;
  • the person's length ofpresence in the United States, with particular consideration given to presence while in lawful status;
  • the circumstances ofthe person's arrival in the United States and the manner ofhis or her entry,particularly ifthe alien came to the United States as a young child;
  • the person's pursuit ofeducation in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution ofhigher education in the United States;
  • whether the person, or the person's immediate relative,has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  • the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence offraud;
  • whether the person poses a national security or public safety concern;
  • the person's ties and contributions to the community, including family relationships;
  • the person's ties to the home country and condition~ in the country;
  • the person's age, with particular consideration given to minors andthe elderly;
  • whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • whether the person is the primary caretaker ofa person with a mental or physical disability, minor, or seriously ill relative; ;
  • whether the person or the person's spouse is pregnant or nursing;
  • whether the person or the person's spouse suffers from severe mental or physical illness;
  • whether the person's nationality renders removal unlikely;
  • Whether the person is likely to be granted temporary or permanent status or other relief from
  • removal, including as a relative ofa U.S. citizen or permanent resident;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and:
  • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

On June 23, 2011 The AFGE ICE Union issued a press release about the “Prosecutorial Discretion” memo issued by Director John Morton. The press release reminds the reader that on June 11, 2010 the ICE Union leaders issued a unanimous “no confidence” vote in Director John Morton. Morale in the agency is low. This press release roundly condemns the “Prosecutorial Discretion” memo. Read the entire Press Release: ICE Union Press Release_23 June 2011

Any American concerned about immigration needs to brace themselves for what’s coming,” said Chris Crane, President of the National ICE Council which represents approximately 7,000 ICE agents, officers and employees,” this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.”

Crane emphasized that agents, officers, employees and the Union had no input in these policies, “ICE and the Administration have excluded our union and our agents from the entire process of developing policies, it was all kept secret from us, we found out from the newspapers. ICE worked hand-in-hand with immigrants rights groups, but excluded its own officers.”
Agents say the policy is a “law enforcement nightmare” developed by the Administration to win votes at the expense of sound and responsible law enforcement policy. “The desires of foreign nationals illegally in the United States were the framework from which these policies were developed,” Crane said, “the result is a means for every person here illegally to avoid arrest or detention, as officers we will never know who we can or cannot arrest.”

With regard to the entire idea of prosecutorial discretion, Agents say they will have none. “Tell any ICE agent he or she will have the final say on making an arrest or holding someone in custody and they’ll tell you you’re crazy, officers will be ordered not to make arrests and failure to comply will result in the end of the agent or officer’s career, that’s business as usual at ICE.”

Doesn't the Congress pass the laws and isn't the Executive charged with enforcing them?

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