Removal Proceedings Redux

By W.D. Reasoner on August 3, 2011

I just finished reading a snarky little blog a friend forwarded me for review. The blog, "Report Reveals Basic Misunderstanding of Deportation Process," by Ben Winograd, purports to be a critique of my recent backgrounder on removal proceedings.

I'll try not to respond to the peculiar and vituperative nature of Mr. Winograd's blog other than to observe that it is continuing proof of the incivility in today's public discourse. Nor will I attempt to respond to all of his assertions, because many don't merit response.

I will, however, speak to a few of his other assertions, for instance, "The author cites not one example of such a suit being filed, much less a law that would permit immigration officers to be sued for the exercise of prosecutorial discretion in the first place." It seems to me foolish in today's post-9/11 world to use the fact that something has not happened as evidence that it cannot and will not yet take place. That I point to no particular lawsuit filed against officers specifically on the basis of prosecutorial discretion is just as easily interpreted to confirm my premise that immigration enforcement officers are loath to exercise "prosecutorial discretion" and put themselves in the position of being sued.

As to whether there is a specific "law that would permit immigration officers to be sued for the exercise of prosecutorial discretion" – curious. Despite his background as a reporter of immigration issues (and the fact that he recently obtained his law degree), Mr. Winograd seems to know little or nothing about law enforcement and /or tort actions. There is no need for such a law. It is very well settled in the courts that federal officers can be sued – in both their professional and their personal capacities – for actions committed or omitted in the course of their duties. When such suits are filed, the government, inevitably also named as a defendant, can choose to represent the officer, or instead can cut its losses and sever itself from the officer by alleging that he or she was acting outside the scope of authority or policy. It is for this reason that many, probably most, federal officers carry hefty liability insurance policies to try to protect themselves from the possibility of not only losing their livelihood, but also their homes, their salaries, and their families' financial well-being, all for the privilege of going about the public's business, often under hazardous conditions, on a daily basis.

The "prosecutorial discretion" policy memorandum issued by Director Morton of ICE is encapsulated in such squishy, loose language as to give the government plenty of wiggle room, in the event that a lawsuit is ever filed, to walk away and leave the officer fending for him or herself by alleging that he or she overstepped the limits of discretion that the agency intended. ICE officers are smart enough to know this, and to therefore exercise a great deal of caution in undertaking ill-defined, poorly mapped-out strategies that put them at risk.