Bustos Law Firm

The Bottom Line on the Latest ICE Memo on Prosecutorial Discretion

In Uncategorized on September 6, 2011 at 2:37 PM

There has been a lot of hoopla about the recent prosecutorial discretion Memos issued by ICE Secretary John Morton, as well as the White House announcements regarding the same on August 18, 2011.

Under the new initiative, some 300,000 immigration court cases will be reviewed. Low-priority cases may get dismissed, enabling the courts to focus on deporting the high priority – “criminal aliens.” All new incoming cases will be reviewed as well, with the possibility of low-profile cases not being filed with the immigration court at all. Some immigrants may even be eligible for work permits.

After this announcement, many immigrants, immigration attorneys, and immigration activists saw what they thought might be the proverbial light at the end of the tunnel. But, the fact of the matter is that Morton’s memo does not change the law in any way, shape, or form. It is simply considered a compilation of old Memos, with no chance of ever seeing the results it promises.

Why? Because what the Memo proposes is unworkable in the real world. To wit, viewing the situation from the perspective of a government bureaucrat, if there is no tangible incentive for ICE employees to apply this Memo, nothing will indeed change. And, by incentive, I mean getting rid of numbers as the only yardstick for measuring the effectiveness of ICE Officials. In the alternative, ICE should focus on engaging in smart law enforcement where its employees are rewarded for successful application of law enforcement priorities.

Those in charge of implementing this new initiative are career ICE prosecutors, deportation officers and administrators. Until now they have been promoted on the basis of how many folks they arrest, detain, and deport….and how fast. Being “bad guys” has been good for their careers.

Now, suddenly, they are being told to be “good guys?” If I am an ICE bureaucrat, my first question will be: “How will I be rewarded for moving a case from the ‘deport’ pile over to the ‘back burner’ pile?” Until that question is answered very clearly, little or nothing will change, and the policy will be seen as nothing more than a blatant election-cycle play for the Latino vote. For this to work, ICE bureaucrats will need to know they will be rewarded and protected if they take a DREAM Act-eligible student out of the deport queue.

In the words of an ICE official, “If you don’t give me a peg to hang my hat on, I’m going to be doing the same thing as before.” The Obama administration has not given its employees a real peg to hang their hat on, if you will. And, don’t expect one to come any time soon either. After all, the administration got the publicity it wanted, so who cares about the rest? Now it’s up to immigration attorneys to explain to numerous clients asking us about the new, “Obama law.” The Bottom Line: Nothing will change, there is no light at the end of the tunnel, and immigrants, now more than ever, need to watch out for unscrupulous characters who will undoubtedly take advantage of an already vulnerable population.

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