There is a famous question that asks, “If a tree falls in the forest and there is no one there, does it make a sound?” I would suggest a slightly different question, “If a tree falls in the forest and there is no one there, does it matter if it makes a sound?” If you wonder why I would ask this- the reason is simple- there is a law enforcement equivalent of that question, “If a law is violated and there is no one enforcing the law violated, does it matter that the law was violated?” I am providing you with a press release issued by the American Federation of Government Employees- a union that represents the employees of ICE (Immigration and Customs Enforcement). This press release was issued on June 23, 2011 and addressed the grave concerns and frustrations of the employees of ICE who have been, in essence, told to utilize “prosecutorial discretion” to avoid taking a wide variety of illegal aliens into custody. It is a de facto amnesty without Congress having enacted any laws to create an amnesty program! The language of the instructions provided to the employees is so open-ended that from an employee’s perspective the message is clear- you are likely to have no problems don’t arrest an illegal alien, but could be in for a world career terminating problems if you fail to exercise appropriate discretion and arrest the “wrong” illegal alien. The press release (PDF) also includes links to the memo that was issued by the Director of ICE, John Morton. Consider what is, in part, contained in the memo:
Exercising Prosecutorial Discretion Consistent with the Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens Factors to Consider When Exercising Prosecutorial Discretion When weighing whether an exercise of prosecutorial 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 of presence in the United States, with particular consideration given to presence while in lawful status;
- The circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
- The person’s pursuit of education 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 of higher 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 of fraud;
- 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 and the elderly;
- Whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
- Whether the person is the primary caretaker of a 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 of a 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;
- 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.
This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.
Recently I wrote a commentary on how ICE has come to use the term “Victim” to describe illegal aliens in a deceptive manner. Victims of Human Trafficking, for example are often simply aliens who paid an alien smuggler to enable to circumvent the inspections process because they know that they are in one or more categories of aliens who are statutorily ineligible to enter the United States. To put it succinctly, an alien who pays a smuggler to facilitate his (her) entry into our country in violation of law is not a “Victim of Human Trafficking” but is, in fact, a co-conspirator! The alien who pays a smuggler to enable him to enter our country surreptitiously is certainly committing a violation of law- yet in this insane world, the federal government that is charged with securing our nation’s borders from unlawful entry of aliens is eager to re-brand these illegal aliens “Victims of Human Trafficking!” You should note, by the way, that “Victims of Human Trafficking” are now eligible to benefit from prosecutorial discretion. In reviewing all of the many reasons why an alien should not be taken into custody and or his/her removal (deportation) proceedings terminated, it would certainly appear that the vast majority of illegal aliens could easily qualify for “prosecutorial discretion!” Please also note the statement at the very beginning of the list of grounds for prosecutorial discretion:
When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to…
The following sentence is posted right after the (partial) list of categories of aliens who should be granted prosecutorial discretion:
This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis.
In other words, as extensive and seemingly nearly all-inclusive as that list is, there may be still more reasons to walk away from an illegal alien encountered in the United States! The language is so vague and so absurd that if I was an ICE agent, I would be extremely reluctant to even think about arresting an illegal alien! Please consider what the AFGE president had to say. Here is another point worth giving some really serious thought to. Today the trend is to vilify unions–especially when they represent civil servants. Stop and give some thought to a fundamental issue that few folks are willing to consider- union officials are able to go public with their concerns about the sort of issues that have been brought to light by the AFGE. I can assure you that any ICE employee who is not a high-ranking union official would face extreme disciplinary action for stepping forward and alerting the citizens of our nation about the madness that now passes for the official policy of the federal government in enforcing the immigration laws of our nation. It is understandable why many politicians are going to war with unions- they are concerned that union officials can go public to disclose nonfeasance, misfeasance and malfeasance. When people blame unions for doing too good a job of looking out for the well being of the employees that they represent, you need to talk to the politicians who enter into agreements with the union. The bottom line is that unions not only serve the best interests of the employees they represent, but they also serve the best interests of all of us when they do as the AFGE did in going public with the outrageous policies that now pass for “business as usual” at ICE! The press release issued by the AFGE is of incredible importance to all Americans and not just the employees of ICE. This newly implemented policy makes it clear that the states must find a way of enforcing immigration laws whenever and wherever they can. Some time ago I wrote that if the past several administrations had the chutzpah, they would seek to declare any human born on the planet earth to be a citizen of the United States. They would convert Immigration and Customs Enforcement into the “Men in Black” (MIB) as depicted in those two humorous science fiction movies- instructing the agents to only seek to arrest beings who arrived in flying saucers. Of course, if that did happen, I suspect the ACLU would then sue the government for “species profiling.” This memo all but changes the job title of the ICE agents to the “MIB” however, you should note that whenever and wherever possible, ICE prefers to talk about their agents who are now often assigned to HSI (Homeland Security Investigations) eliminating the term “Immigration” from the equation! Can the “MIB” designation be far behind? A final point–My colleagues and I at the former INS always wanted to use our authorities as INS special agents to prioritize criminal aliens and alien engaged in activities that presented the greatest threats to our nation. In meeting with Senator Alphonse D’Amato in the early 1980’s when we convinced him to create the new law that called for a maximum of 20 years of imprisonment for aliens who were deported subsequent to being convicted of committing felonies and unlawfully re-entered the United States we suggested that the focus of the INS should be criminal aliens. In fact, the law provides for aliens who suffer particularly significant hardships- such as suffering from life threatening illnesses and for other reasonable causes, those aliens might have their cases placed in “Deferred Action.” This is entirely appropriate when the individual cases could be carefully reviewed in a case by case situation. Generally the numbers of such cases was extremely small and it made sense. While it makes sense to prioritize criminal aliens over aliens without known criminal involvements, it is still important that when illegal aliens who have no known criminal histories are encountered pursuant to other investigative efforts that those aliens are taken into custody and their removal from the United States is sought to create deterrence. This helps to dissuade aspiring illegal aliens from running our nation’s borders. The idea is that if you are in the United States in violation of law, at any moment you may be encountered by law enforcement and be sent home. This is sensible. To create a virtual amnesty for unknown tens of millions of illegal aliens by providing them with all sorts of ways that they can seek to remain in the United States encourages still more illegal aliens to run our nation’s borders in the hope that if they get really lucky the administration and members of Congress will ultimately reward their violations of our laws and our borders by being placed on a “pathway to United States Citizenship.” If that does not work out, at least these aspiring illegal aliens now know that where the federal government is concerned, they have absolutely nothing to fear. As many more illegal aliens seek to run our borders the likelihood that criminals and terrorists among them will succeed in entering our country. By “giving away the store” as the officially mandated ICE policy does, an illegal alien would be far less likely to want to provide information to law enforcement or act as an informant, in exchange for the authority to remain in the United States. Why would they want to put themselves at risk when it is clear that our government couldn’t care less that they are illegally present in the United States? When I worked for the INS I had reached the point where I used to say that the INS was an agency in a state of free-fall and bottom was elusive. As things got wackier, I changed my statement to say that bottom was no longer elusive–it was illusory–there was no bottom. I cannot even begin to comprehend the situation that the ICE agents are confronting each day when they go on duty.