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Matthew Kolken on Deportation And Removal

Immigration "Upper Management" Confirms Obama has Authority to Exercise Discretion

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The following comment was submitted in response to a blog written by my colleague Roger Algase regarding the Bush administration's exercise of prosecutorial discretion.

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.

There is no question that President Obama has the Constitutional authority to favorably exercise discretion by expanding current policies that provide deportation relief on a case-by-case basis. The rhetorical question is why has President Obama been allowed to lie about his authority for 5.5 years, and more importantly, why does it take an election for him to exercise it?

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Updated 08-08-2014 at 10:42 AM by MKolken

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  1. Retired INS's Avatar
    Unlike our tax laws, immigration law allows for a great deal of discretion by those who enforce our immigration laws, and sometimes by those who make decisions on immigration benefits. For example, as an INS Immigration Inspector at the border, I could accept an oral declaration of American citizenship, even if the person did not speak English, or I could require documented proof of citizenship. I didn't even need probable cause to ask for proof of citizenship. Later, as an enforcement officer encountering illegal aliens, I had many options: (1) arrest and process for deportation, (2) arrest and grant voluntary departure, (3) not arrest and advise the person to get his or her paperwork in order. When adjudicating immigration benefits, I could accept statements as being true, or I could investigate a marriage to see if the husband and wife really had a legitimate marriage. As stated, there is a great deal of discretion at play with our immigration laws.

    As an immigration manager I reviewed the advance policy memo on Deferred Action for Childhood Admissions (July 2010). This was not a sudden move by President Obama, as most people believe. I wrote extensively on my review and openly opposed it. However, I do believe the decision was legal.

    I did not vote for President Obama, but I feel compelled to defend him. While I disagree with his decisions, I believe they are legal. Republicans and democrats are more interested in destroying each other than they are in solving problems. I have seen logical proposals dismissed out of hand because they don't fit the narrative that politicians want to give the public. The best example was California's Proposition 187 in 1994 when both republicans and democrats lied about the proposal for their own interests. Democrats wanted to scare Hispanics into contributing money and voting for them. Republicans lied about the purpose of 187 for their own benefit. At that time there were about 300,000 illegal alien children in California whose parents were legal due to amnesty. Amnesty did not grant benefits to children who didn't qualify in their own right. Had Proposition 187 been declared constitutional, what was I, as an INS officer, going to do with illegal alien children who parents were legal residents in the United States? Nobody told the truth about Proposition 187 and I feel that is happening today with our current immigration problems.
  2. MKolken's Avatar
    Thank you for your follow-up comment.
  3. federale86's Avatar
    However, there is a big difference between not doing something and doing something without authorization in law. Obama wants not just to ignore an immigration violation, but to give an benefit to illegal aliens. Big difference. There is no basis to give an alien a benefit as opposed to refusing to take action, which is itself a violation of his oath to see that the laws are faithfully executed.
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