LAST WEEK, Secretary of Homeland Security Janet Napolitano testified before the House Judiciary committee as to the state of affairs within the agency. Ms. Napolitano responded to specific criticisms regarding the Department’s planned use of “prosecutorial discretion” on pending removal proceedings to focus priorities on removing the most dangerous aliens and close certain cases in an effort to alleviate crowded dockets throughout the nations Immigration Courts. Republican members of Congress took particular interest in the “prosecutorial discretion” directive, and have been questioning whether the Department was authorizing a “backdoor amnesty,” however, Ms. Napolitano’s comments made clear that the program has not yet begun and that the program was in keeping with the best interests of DHS and the Nation.
Originally announced via memorandum by Mr. John Morton, Director of US Immigration & Customs Enforcement (USICE) in June of this year, the program instructs ICE District Counsel and deputies to exercise “prosecutorial discretion” in removal proceedings. In 2010, USICE had issued a Memo from Mr. Morton that had directed USCIS to expedite visa petitions affecting Respondents in removal proceedings and dismiss proceedings against certain foreign nationals who appear to be eligible for relief from removal, such as adjustment of status to lawful permanent resident. Since that Memo was met with a certain degree of hostility from Republican Congressmen, the picture remained unclear as to what the Administration’s position would be with respect to the prosecution of Removal Proceedings. The June 2011 Memo made it clear that USICE is to prioritize certain types of cases to alleviate backlogs within the Executive Office for Immigration Review (EOIR) and lighten the Immigration Judges’ dockets throughout the US.
The now famous “Morton Memo” called for USICE to move to dismiss removal proceedings against individuals who appear eligible for relief, as long as there are no serious adverse factors or any ongoing investigations involving the Respondents. In these cases, the USICE District Counsel should move to dismiss the proceedings if the Respondent is the beneficiary of an application or petition filed with USCIS with a current priority date; the Respondent appears eligible for adjustment and deserving of a favorable exercise of discretion; and the Respondent files the appropriate application and the Respondent is statutorily eligible for adjustment of status or for a waiver of any grounds of inadmissibility that may apply. Finally, the Memo also suggests that the USICE may move to dismiss certain removal cases in their discretion, even if Respondents are not Beneficiaries of visa petitions with a current priority dates; however, no further guidance was given as to when or how, exactly, the priorities would be implemented.
This policy announcement was met with hostility from Republican politicians openly criticized the Obama administration for endorsing a “de facto amnesty” by utilizing administrative policy change to de-prioritize removal of non-criminal and non-dangerous foreign nationals, and last week, Secretary Napolitano was called upon to testify before the house, largely in response to the misplaced criticisms of Congress. First, Ms. Napolitano assured members of Congress that the Department’s primary focus continues to be preventing terrorism and enhancing security and securing and managing our borders. The Secretary explained in no uncertain terms that the Obama Administration has continued to remove “undocumented” and criminal aliens at a rate far in excess of that of any preceding Administration, including that of George W. Bush.
Next, in defending the “prosecutorial discretion” imperative, the Secretary advised Congress that “[t]here have never been, nor will there be in tight fiscal times, sufficient resources to remove all of those unlawfully in the United States or who are otherwise removable.” While it may be obvious to most that the US lacks resources to remove some 12-15 million people unlawfully present in the US, this fact is often ignored by politicians looking to lambaste the Administration by portraying them as “soft on immigration.” Ms. Napolitano explained further that “there are hundreds of thousands of cases currently pending before DOJ immigration courts, many of which could take years to resolve. Tens of thousands more are pending review in federal courts. Each of these cases costs considerable taxpayer dollars, and those involving low priority individuals divert resources away from and delay the removal of higher priority individuals. The expenditure of significant resources on cases that fall outside of DHS enforcement priorities hinders our public safety mission by consuming litigation resources and diverting resources away from higher-priority individuals.”
In response to pointed questioning regarding the initiative, Ms. Napolitano explained that “prosecutorial discretion” has long been used to clarify the agency’s policy objectives and that a more focused effort in this regard was currently required due to the massive docket backlogs and ongoing fiscal woes plaguing all agencies in the US Government. The Secretary explained that the “working group” designated to review the 300,000 pending cases had yet to be formed and direct guidance to ICE Attorneys and staff would be forthcoming. Indeed, only last week it was rumored that ICE Director John Morton visited the Los Angeles office of the District Counsel for the first time since the June memo was issued to begin the process of disseminating guidance on the exercise of prosecutorial discretion to the ICE Attorneys who will be responsible for making decisions to pursue or close cases.
While the path to implementing these objectives is far from clear, Congressmen from the right singing the “small government” mantra should be welcoming the new policy objectives on the basis of fiscal savings alone. Given the trend of deepening partisan divides in Washington, however, one might expect further hearings and “Witch-hunting” in Congress as those intent on defeating the Administration in the next election apparently desire nothing more than preventing it from succeeding in any policy; even one that supports their own stated fiscal policy objectives.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlonlawgroup.com
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