The newest “prosecutorial discretion” directive for deportation cases.
The new directive, titled Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities, was issued by ICE's new director, John Sandweg, to all ICE agents on August 23, 2013, and it referred to the euphemistic moniker of “prosecutorial discretion,” which has been used repeatedly to administratively direct ICE agents in the field to no longer apply immigration laws if individuals fit into the definition of the directive.
In this case, Sandweg directed all ICE agents to use “prosecutorial discretion” regarding individuals ICE detainees who are parents or caregivers to children living in the USA.
The directive identified three specific categories: 1) primary caretakers of minor children without regard to the dependent's citizenship; 2) parents and legal guardians who have a direct interest in a family court proceeding involving child welfare proceedings in the United States; and 3) parents or legal guardians whose minor children are U.S. citizens (USCs) or lawful permanent residents (LPRs).
This latest prosecutorial discretion memo follows in a long line of similar memos authored by a variety of high-level Department of Homeland Security (DHS) officials, each of which has reduced the scope of illegal aliens who are to be prioritized for removal.
The so-called “Morton Memo,” authored in 2011 by then-ICE Director John Morton, instructed ICE agents to treat any illegal alien not convicted of a crime as a low priority. Then, in December 2012, another ICE memo instructed ICE agents to treat anyone with two or fewer misdemeanors as a low priority. (ICE still considers even one felony conviction as a high priority). With this new directive, all illegal aliens considered primary caregivers for children, here legally or illegally, will also be treated as a low priority.
Recently, Congress has gotten into the act. Earlier in September, liberal California Senator Diane Feinstein sent a letter to outgoing DHS Director Janet Napolitano urging DHS to consider applying prosecutorial discretion to farm workers.
Jessica Vaughan is a policy analyst with the Center for Immigration Studies, and in a blog post, she likened the new directive to the parental version of the DREAM Act. In that same blog post, Vaughan singled out a criminal illegal alien previously featured in Front Page Magazine.
Amado Espinoza-Ramirez is a suspected serial child molester, who’s accused of acts that include incest. After making bond in a criminal court in Chicago, Illinois in early September 2011, ICE took custody of Espinoza-Ramirez. ICE decided to release rather than hold him in an ICE facility because there wasn’t enough bed space in ICE facilities and he no longer fit their definition of dangerous. He was released with a tracking monitor. He subsequently maneuvered out of that tracking monitor, missed all subsequent court appearances, and is considered a fugitive, while being charged in criminal and immigration court in absentia.
The two reasons identified by ICE at the time for releasing rather detaining Espinoza-Ramirez were that Espinoza-Ramirez was only suspected but not convicted of criminal acts and that he had a legal citizen child.
Espinoza-Ramirez is still a fugitive and likely back in his home country of Mexico. However, were he to be apprehended, the same principles would still be in place, and arguably, Espinoza-Ramirez would be eligible for release under the new directive.
This new directive did not escape the ire of Congress. The Chairman the House Judiciary Committee, Bob Goodlatte, immediately issued a statement linking this policy to a tough-on-criminal-illegal-alien bill passed out of his committee called the SAFE Act.
The primary reason why our immigration system is broken today is because our immigration laws have largely been ignored by past and present administrations. It’s imperative that we prevent this from happening again by taking away the enforcement on/off’ switch from the President. That’s why the House Judiciary Committee approved the SAFE Act, which prevents the Executive Branch from unilaterally turning off immigration enforcement by granting states and local governments the authority to enforce federal immigration laws.
Not everyone was attacking the directive. The American Immigration Council (AIC) defended the directive, stating in a blog post that this was nothing more than a sensible first step toward immigration policy which places priority in not breaking up families.
The directive, signed by Acting ICE Director Jon Sandweg, reminds ICE officers that they must continue to review all cases individually and "continue to weigh whether an exercise of prosecutorial discretion may be warranted" while considering such factors such as whether the immigrant is a parent, guardian, or primary caretaker of a U.S. citizen or a minor.
Tough deportation policies against criminal illegal aliens was one of the main promises of all those who have been proponents of comprehensive immigration reform. The public has been promised repeatedly that criminal illegal aliens will be pursued with vigor and all dangerous illegal aliens would face deportation. A series of memos (including this last one) prove that President Obama has no intention of getting tough on dangerous illegal aliens.
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