Immigration Prosecutorial Discretion: The Exception that Undoes the Rule of Law

By Dan Cadman on July 27, 2015

Last week, directors Sarah Saldana of Immigration and Customs Enforcement (ICE) and Leon Rodriguez of U.S. Citizenship and Immigration Services (USCIS) testified before the Senate Committee on the Judiciary in a hearing focused on the shabby state of immigration law enforcement, and most particularly on sanctuaries that refuse to honor ICE detainers, leading to murders throughout the country. The hearing was called "Oversight of the Administration's Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims". Several surviving family members also testified at the hearing.

Despite the reference in the name of the hearing to honoring victims, Sens. Schumer and Durban did attending family members the dishonor of choosing to absent themselves during their testimony. Such callousness is as shocking as Rep. Luis Gutierrez's reference to the murder of one of the victims (Kathryn Steinle) as "a little thing".

Also notable is the president's steadfast refusal to make a consolation call to Ms. Steinle's family after her murder by an illegal alien in San Francisco in front of her father, or even refer to it in any remarks, perhaps because it so glaringly proves the untruth of the "felons, not families" rhetoric of his November 2014 televised speech on his immigration enforcement priorities. In stark disproof of the president's assertion, several of the family members noted in their testimony that their loved ones were murdered by aliens left to prowl the streets not just by local police in sanctuary locations, but also by ICE because of its skewed detention priorities.

What these political "leaders" have shown by their callousness is that they are truly the little things; petty human beings so lopsided in their views that they cannot accept that there is ever, anywhere, in any way, a downside to the wave of illegal immigration that the country has been subjected to under the Obama administration.

Rodriguez and Saldana did an admirable job in their testimonies of ignoring the title of the hearing; neither made any substantive reference to the fact that as a result of administration actions (or, in the case of sanctuaries, refusal to act) innocent victims have lost their lives in the hundreds and have been assaulted physically and sexually and maimed and injured in the thousands. There was nary a reference to the fact that the administration has sheltered sanctuary jurisdictions from any kind of legal action to force compliance with federal laws; that its made-up "prosecutorial discretion" programs have resulted in aliens being granted lawful status, only to commit homicide because of poor adjudicative procedures — procedures so poor that the Homeland Security inspector general has called out both agencies on their inability to show that prosecutorial discretion has any of the ameliorative effects the president and his DHS secretary claim: that it permits the government to go after the "worst of the worst" while leaving the remainder free from worry that the law will be enforced.

Yes, "prosecutorial discretion" was the watchword of the day among apologists who chose not to meaningfully address the issues of inappropriate release of alien criminals, whether by federal, state, or local governments. And as if to put a fine point on Rodriguez' and Saldana's testimonies, the Migration Policy Institute, the think tank of choice for open borders advocates, has just issued a report confirming that if the administration hews to its asserted immigration "priorities" (that is to say, if it is successful in continuing to force agents to sit on their hands, and perpetuating the culture of "yes" in benefits-granting by immigration adjudicators, often through fear of retribution, poor ratings, or disciplinary action), then fully 87 percent of the illegal population present in the United States will be free from any fear whatsoever of enforcement action against them.

The conclusion for anyone of sound mind is inescapable: "prosecutorial discretion" is the exception that undoes the rule of law in the Obama administration. It is statutory nullification at its worst.

Given that the federal government has released tens of thousands of alien criminals to the streets in the past couple of years, and is on track to do so again this year — and given that state and local governments continue to steadfastly do the same, as was on tragic but full display at the Senate hearing as well as at a parallel House Judiciary Committee hearing, my gauge is that 87 percent is, unbelievably, an undercount since MPI relies on the government to be as good as its word about the loosey-goosey "Priority Enforcement Program" adopted under this DHS secretary, when it is clear that even criminals are no priority, whatever the administration's rhetoric.

And, of course, underlying all of the assumptions by the few progressives that will go at least this far, is that only alien felons are the problem. If only we can lock them up, we can dust our hands off and go back to the serious business of legalizing everyone else. But that belies reality. Many individuals are killed by individuals who have no serious record, but a continuing series of petty brushes with the law, during which time they either go completely off the sanity rails because they were not very stable to begin with; or become hardened recidivists on an upward climb to violence in no small part because the lesson they learn from law enforcement bureaucracies at all levels is that their lawlessness is a matter of indifference; or in the case of substance abusers, that there is no reason they shouldn't drive drugged or drunk, because the chance of arrest is small, the chance of punishment smaller, and the chance of deportation nil.

All of this bodes badly for the American public, and even for aliens, legal or illegal, in migrant communities everywhere who will also be victimized by these offenders. The forecast: many more victims.