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G. W. Bush Memo and Former AG Back Executive Power for Removal Relief. Roger Algase

Rating: 4 votes, 5.00 average.

Update: August 12, 10:23 pm

The Hill reports that on August 12, Alberto Gonzalez, former Attorney General under President George W. Bush, has spoken out in support of using executive power to grant relief from deportation. See Ex-Bush attorney general backs executive action on immigration (August 12).

http://thehill.com/blogs/blog-briefi...tive-action-on

The Hill writes:

"But Gonzalez said the country should not let the 'souls of innocent children' be caught in a constitutional fight, citing the massive influx of young migrants who have crossed the border in recent months.

'This is not just a classroom exercise or court room drama', he said. 'This is a real world exercise involving human beings.'"

However, the same article reports that while Gonzalez said that border children should be given their day in court, they should not be released from custody before their deportation hearings, which could be months or years away.

The former AG might wish to take a closer look at the TVPRA, which requires that the best interests of the children be taken into account in any custody or detention arrangements pending their hearings. Holding them in lengthy detention or custody just to make the point that, in the former AG's words, the US "will enforce those laws to secure our borders", is a prime example of using the children as pawns in a legal battle over immigration which Gonzalez condemns in the previous quote cited above.

The following is my original post:

The hysterical and hypocritical accusations that President Obama is running an "imperial presidency" and should be impeached for using administrative power to grant relief from deportation ignore the fact that the doctrine of prosecutorial discretion in removal proceedings was already being used by his predecessor, George W. Bush. On October 24, 2005, William J. Howard, Principal Legal Advisor to ICE, issued a memo entitled simply: Prosecutorial Discretion.

The memo began by pointing out that OPLA (Office of the Principal Legal Advisor) was handling 300,000 removal cases in the immigration courts alone, not to mention 42,000 appeals to the BIA and 12,000 motions to reopen each year with only about 600 attorneys, allowing an average of only 20 minutes to prepare each case. The memo also stated that

"...we must prioritize our cases to allow us to place greatest emphasis on our national security and criminal alien dockets."

Sound familiar? The memo continued:

"...the universe of opportunities to exercise prosecutorial discretion is large."

The memo went on to give examples in which using prosecutorial discretion not to initiate removal proceedings, or to terminate proceedings already begun, might be appropriate. These included, among others,: immediate relatives of military service personnel, clearly approvable I-130/I-485 Adjustment of Status, and, significantly, sympathetic humanitarian factors. On this latter point, the memo stated:

"Deferred action should be considered when the situation involves sympathetic humanitarian circumstances that rise to such a level as to cry for an exercise of prosecutorial discretion."

The memo concluded:

"Prosecutorial discretion is a very significant tool that sometimes enables you to deal with the difficult, complex and and contradictory provisions of the immigration laws and case involving human suffering and hardship. It is clearly DHS policy that national security violators, human rights abusers, spies, traffickers both in narcotics and people, sexual predators and other criminals are removal priorities. It is wise to remember that cases that do not fall within these categories sometimes require that we balance the cost of an action versus the value of the result. Our reasoned determination in making prosecutorial discretion decisions can be a significant benefit to the efficiency and fairness of the removal process."

Many of the same politicians who are now threatening President Obama (who has deported people at a much faster rate than his predecessor) with impeachment over the use of executive power in removal proceedings were serving in Congress when this memo was issued less than 10 years ago. I do not recall that any of them were calling for President Bush to be thrown out of office for using his power to grant relief from deportation then.

Therefore, the furor over "executive overreach" in President Obama's DACA program (which will soon no doubt be called "Obamnesty" by immigration foes - I am surprised that they haven't thought of that yet!), is phony from alpha to omega.

If a Republican president were in power (such as George W. Bush, who was given to issuing signing statements claiming the right to ignore laws that he didn't like), no one would be hearing a word about an immigration-related "imperial presidency" - at least not from that side of the aisle.
____________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been serving employment-based and family-based immigrants from many parts of the world for more than 30 years. His email address is algaselex@gmail.com

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Updated 10-20-2014 at 07:52 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Sharing this!
  2. Retired INS's Avatar
    I was an immigration officer for 39 years, including 29 years in upper management. I saw many memos on the use of prosecutorial discretion over the years. This is used by all prosecutors, whether they be at the local, state, or federal level. For example, when I was an INS Criminal Investigator in Baltimore (1975-1980), the U.S. Attorney for Maryland would not prosecute for theft relating to international shipping unless it was greater than $30,000. In immigration cases, most U.S. Attorneys would not prosecute for entering the country after deportation unless it was a second or third offense. As mentioned above, the reason is simple, they had too many cases and had to be selective.

    Prosecutorial discretion was also used by law enforcement officers in the field. We didn't arrest every person who broke the law. If an illegal alien was married to an American citizen and had American children, we often advised the American spouse to file a petition instead of making an arrest. Why not, we would never succeed in deporting this person anyway.

    Memos from top immigration officials often spelled out the policies different administrations wanted to use relating to prosecutorial discretion. The memo you cited was typical and not unusual.

    Prosecutorial discretion could only be used in cases related to violations of the law. It could not be used when we made decisions on immigration benefits.
  3. ImmigrationLawBlogs's Avatar
    Retired INS's comment is helpful in terms of showing that immigration prosecutorial discretion used in the field has been around for a long time. This gives support to the Obama administration's claim in the DACA memo that it is only formalizing and expanding on a principle which has been used in practice for quite a while.

    However, in the case of the Central American border children, we are seeing "prosecutorial discretion" in reverse. Instead of allowing people to stay when they do not have legal authorization, the Obama administration is kicking children out who are entitled under the law (TVPRA) to stay in the US pending a full and fair hearing before an immigration judge, not the Kangaroo process described in Julia Preston's recent New York Times article.

    Roger Algase
    Attorney at Law
    Updated 08-08-2014 at 09:27 AM by ImmigrationLawBlogs
  4. Retired INS's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Retired INS's comment is helpful in terms of showing that immigration prosecutorial discretion used in the field has been around for a long time. This gives support to the Obama administration's claim in the DACA memo that it is only formalizing and expanding on a principle which has been around in practice for a long time.

    However, in the case of the Central American border children, we are seeing "prosecutorial discretion" in reverse. Instead of allowing people to stay when they do not have legal authorization, the Obama administration is kicking children out who are entitled under the law (TVPRA) to stay in the US pending a full and fair hearing before an immigration judge, not the Kangaroo process described in Julia Preston's recent New York Times article.

    Roger Algase
    Attorney at Law
    I reviewed the proposed policy memo that eventually became DACA. I received the proposal in July of 2010 and commented extensively. Deferred Action has been around since the 1950s. It was known as "Non-Priority" until the late 1970s. Immigration attorney Leon Wildes wrote about its history in the San Diego Law Review many years ago. This benefit was offered to his client, John Lennon, when the Nixon administration was trying to deport the Beatles star. Deferred Action was intended for the very unusual cases of hardship and I therefore opposed the proposal, however, I do believe the action was legal, despite my objections.
  5. ImmigrationLawBlogs's Avatar
    Thanks again to Retired INS for sharing his experience and making an important point.

    Roger Algase
    Attorney at Law
  6. federale86's Avatar
    The big difference is that Bush did little in the area and furthermore did not give any illegal alien employment authorization if it decided not to take action. But if Bush had done DACA he would have been impeached, but his advisors concluded that he could not take wide scale dismissal of immigration cases or prohibit enforcement of the law accross the board. So while you claim Bush supported an Admininstrative Amnesty, that is in fact not true.
  7. ImmigrationLawBlogs's Avatar
    federale86 should read the Bush administration's memo I discussed before making any comments about it. It gives broad authority to immigration officers to grant relief from deportation to low priority immigrants. The fact is that Bush deported an average of about 250,000 people each year while he was in office. Obama's number is about 400,000 per year.

    Which of the two presidents has been harsher toward unauthorized immigrants in actual practice? There is no doubt about the answer.

    Roger Algase
    Updated 08-12-2014 at 08:19 PM by ImmigrationLawBlogs
  8. Nolan Rappaport's Avatar
    Everyone seems to be concerned about how much power President Obama has to provide temporary lawful status to undocumented aliens, but I seem to be the only one who is worried about the potential consequences to the undocumented aliens of accepting such relief.

    According ICE removal statistics, 93% of all ICE's non-criminal removals in FY 2013 were of recent border crossers, repeat immigration violators, or fugitives from the immigration courts. https://www.ice.gov/removal-statistics/ But undocumented aliens who apply for temporary lawful status under a presidential grant of administrative relief will change those odds. They will become low hanging fruit for the next Republican president. DHS will have a list of these individuals with admissions of alienage and unlawful presence, and their addresses, in addition to whatever other contact information appears on the list. The republican president will be able to pick up his phone and order DHS to pick up all of those individuals and rush them through removal proceedings. Their hearings will only take a few minutes. Their admission of alienage and unlawful presence makes the deportable under sections 237(a)(1)(B) and 291 of the INA.

    For further information, see my article, "Immigration activists are pressing President Obama to halt deportations for as many undocumented immigrants as possible. This is a ?be-careful-what-you-wish-for? situation." (August 14, 2014); http://discuss.ilw.com/content.php?3423-Article-Immigration-activists-are-pressing-President-Obama-to-halt-deportations-for-as-many-undocumented-immigrants-as-possible-This-is-a-%93be-careful-what-you-wish-for%94-situation-By-Nolan-Rappaport
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