Amnesty by Any Means Extended to DOJ Lawyers

By Janice Kephart on November 18, 2011

According to a story in today's LA Times, amnesty is now officially being rolled out in U.S. immigration courts. Department of Justice (DOJ) immigration attorneys are being directed to work side-by-side with Department of Homeland Security immigration agents to significantly reduce pending deportation cases. In keeping with the DREAM Act-like-one-full-page-laundry-list of those illegal immigrants not to be touched by the rule of law, the pilot program will freeze currently docketed immigration deportations. Baltimore and Denver are the first to keep their illegal populations intact. The intention is that the rest of the nation's dockets – and the communities bearing the burden of these populations – are not far behind. This practice was first reported in Houston in 2010, where attorneys were ordered to dismiss cases by their superiors. Now it is an official program being rolled out across the country.

The backdrop to this particular amnesty program is based in the "prosecutorial discretion" memo issued by Immigration and Customs Enforcement (ICE) Director John Morton on June 17, 2011. This was the same memo that resulted in Morton's second vote of no confidence by his unionized agents. The memo explicitly tells ICE agents and immigration attorneys to clear dockets, not fill them, with immigration violators. In fact, the memo has quite a bit of discussion on the issue. A few weeks ago I highlighted this new policy in "Amnesty by Any Means":

Equally disturbing is that "ICE officers, agents, and attorneys" now have the discretion to dismiss and close cases "at any stage of the proceedings." In contrast, no guidance is provided on bringing deportation or removal cases. In fact, attorneys should proactively remove immigration cases from dockets. Furthermore, ICE is not to request law enforcement information, but simply ask the alien for relevant information sought: "In cases where ... an exercise of prosecutorial discretion may be warranted but additional information would assist in reaching a final decision, additional information may be requested from the alien or his or her representative." (p. 6)

Morton's prosecutorial discretion memo not only clearly sets out to ignore federal immigration law, but also adds tremendous confusion to agents' and attorneys' ability to process and prosecute deportation cases. This is the first time (I am pretty sure) DOJ lawyers have been ordered to not to do their job in relatively detailed but confusing guidelines. With no clear guidelines in place on how to undo their job of prosecuting deportation cases, this new program appears to be the missing piece to set these agents and prosecutors on the correct path to use our tax dollars to help illegal aliens stay here indefinitely.

The program also goes hand-in-hand with the new U.S. Citizenship and Immigration Services (USCIS) directive issued on November 7, 2011. This memo requires that USCIS rarely issue Notices to Appear in immigration court – a traditional USCIS responsibility and precursor to a court appearance. Instead USCIS is make referrals to ICE in most instances. However, ICE, as we know, already has their hands tied and is not permitted to issue the Notices to Appear, again in most instances. It is one thing to give ICE authority to issue NTAs in criminal cases, but this order also removes USCIS from issuing NTAs in basic cases of re-entry after removal or deportation, which will buck most of the USCIS cases over to ICE for non-removal under the current Morton directive. According to the memo, "This referral process is utilized in order to give ICE the opportunity to determine the appropriate course of action before USCIS adjudicates the case." Which means, ICE will not do anything.

The latest order to DOJ lawyers to clear deportation dockets is just one piece of the Obama administration's overall strategy to grant amnesty by any means. Some of the pieces are:

  • the White House push to grant amnesty administratively, outside of Congress, and to these same illegals, grant worker authorization

  • a State Department attempt to get Congress to pass legislation and get the Department of Homeland Security to agree to no longer conduct visa interviews – not even background checks – for visitors from about 36 foreign nations

  • directives to the Border Patrol to no longer conduct random checks at commercial transportation hubs within 100 miles of the border (on the northern border, these checks account for one-third to one-half of apprehensions)

  • directives to immigration and customs agents to not file charges against illegals except for known, convicted criminals or terrorists

  • a return to "catch and release" and "alternatives to detention"

  • worksite audits of employers with no arrest of illegal workers

The Obama administration's strategy to usurp federal immigration law in its pursuit of amnesty by any means is extending to every crevice of our immigration apparatus. The stronger the silence from Congress, the greater, it seems, the quickening of the administration hand to create amnesty.