Prosecute True Criminals, Not Working Moms
Every year more than 300,000 cases are put on the docket in the 50-plus Immigration Courts around the country. Does each case represent a hardened criminal who deserves to be locked up and deported as fast as possible? Not by a long shot.
Sit in the gallery of your local Immigration Court for a day, or a week, and you'll be amazed at who's on the docket. You'll see working mothers, students, old folks and children, even infants. And, yes, a few bad guys. ICE even wastes our tax dollars by keeping dead people on the docket.
But mostly you'll see honest, hard-working folks who either couldn't get a visa because of our 1950's-vintage visa quotas, or folks who entered legally and then overstayed. Now they’re hoping for some mercy and/or creativity from the Immigration Court judge and their lawyers, if they are lucky enough to be able to afford them.
There are plenty of folks on the docket who have criminal histories, no visas, no family ties here and no realistic way of ever living or working legally in the U.S. The docket should be filled to the gills with that group, and we should find a better way of dealing with the student visa “overstayers” and working moms.
Every immigration lawyer has dozens of clients whose cases "don't belong on the docket" but who are scrambling for hope because of a system that does not value prosecutorial discretion and does not allow government lawyers sufficient leeway to exercise good judgment. Sometimes there's just no hope.
In my experience, there are thousands of people deported every year who simply do not belong on the Immigration Court docket. And because Immigration Court judges lack the authority to dismiss cases purely on humanitarian grounds, that decision is left to the prosecutor, who is from the ICE (Immigration and Customs Enforcement) arm of DHS (Department of Homeland Security.)
Over the years, guidelines for the exercise of prosecutorial discretion have been laid out by top immigration officials, most notably the 2000 memo by then INS Commissioner Doris Meissner, followed by a 2005 memo by then ICE Principal Legal Advisor William J. Howard, and finally a 2007 memo by then ICE Assistant Secretary Julie L. Myers.
They are filled with common-sense notions, such as taking into account the individual's family and community ties, military service, health, and eligibility for relief from “removal.” (In 1996 Congress changed the statutory term from “deportation” to “removal,” but the net effect is the same: forced exile from what for many is the only home they have ever known.)
These memos should be required reading for every ICE attorney, up to and including the new Homeland Security boss, Janet Napolitano. The memos are not rocket science. Everyday citizens should read them too, and keep them in mind if ICE comes calling for a family member, friend or co-worker.
Here’s the message for ICE: Fill the docket with nothing but the bad guys and exercise discretion – and common sense – when thinking about trying to deport the out-of-status student, drywaller, gardener or programmer. The docket will be as full as ever, the statistics will show high numbers of deportations, and we won’t be any less safe or secure. We might even end up with a bit more confidence that our immigration enforcement tax dollars are being wisely spent.
Attorney Daniel M. Kowalski, an IJJ Senior Fellow for Immigration, is editor of Bender's Immigration Bulletin (LexisNexis).
E-Mail: dan@cenizo.com