U.S. immigration enforcement’s ‘prosecutorial discretion’ history dates to John Lennon


Mona Reeder/Staff Photographer
Greisa Martinez and her mother, Elia Rosas, were in the crowd protesting the U.S. immigration policy outside of Sen. John Cornyn's office in Dallas in April. Martinez came to the U.S. as an infant with parents who entered unlawfully.

By DIANNE SOLÍS
DIANNE SOLÍS The Dallas Morning News Staff Writer
dsolis@dallasnews.com
Published: 06 October 2013 11:13 PM
Updated: 06 October 2013 11:36 PM

Former Beatle John Lennon gave music many memorable songs. But he also played a role in U.S. immigration policy.
In 1975, Lennon’s lawyer Leon Wildes fought to keep Lennon from being deported over a conviction for possession of cannabis resin in Britain. The suit under the Freedom of Information Act brought to light a then-murky legal area of “prosecutorial discretion” also being used today for potential deportees who aren’t considered a high priority.
As Congress sputters on an immigration overhaul that could determine the fate of an estimated 11.7 million immigrants in the country unlawfully, the Obama administration has applied prosecutorial discretion in a series of directives.
One directive issued in August focused on immigrant parents in deportation proceedings. It re-emphasized guidelines to keep families together.
How wide the directive’s use will be remains to be seen.
“With parents, it’s harder to make the argument that they are innocents like you can the children,” who were brought to the U.S. unlawfully, or overstayed visas, said Michael A. Olivas, a University of Houston law professor.
Deportations continue at a record pace, reflecting the dilemma within many federal agencies like the Department of Homeland Security. The agencies are charged with enforcing the law. But they also have the discretion not to enforce it.
“The new memo talks about family unity, but every year we send back 400,000 persons, including tens of thousands of U.S. citizens who are their children and have birthright citizenship,” Olivas said.
Olivas noted the long history of deportation discretion and cited the Lennon case to back his argument.
Stretching it?
Others combat its use and expansion.
“In the context of immigration, the Obama administration has stretched prosecutorial discretion beyond all recognition,” said lawyer Kris Kobach, who has represented several cities and states, including Farmers Branch, in legislation targeting illegal immigration.
Kobach, who is Kansas secretary of state, was among the attorneys for 10 deportation agents in a Dallas federal suit aimed at reining in many forms of prosecutorial discretion.
In late July, Dallas federal Judge Reed O’Connor dismissed the case for lack of jurisdiction. A month later Kobach filed a motion to alter the judgment.
In a recent federal filing, Kobach said the government’s August order “brazenly” creates an additional immigrant class that is effectively immune from deportation.
The federal case especially targeted an initiative aimed at young immigrants who arrived in the U.S. unlawfully or overstayed visas. It can also lead to two-year work permits.
So far, more than 500,000 people have applied for the year-old halt from deportation. About three out of four applicants have been approved, according to a recent review by the nonpartisan Brookings Institution.
Outright denials have been few. Some applications are still pending, and more are being accepted.
‘End our pain’
Greisa Martínez, a Mexican immigrant pushing for permanent legalization, praised the latest directive.
“What is good is that we could decrease the numbers of kids in foster care,” said Martínez, who lives in Dallas and is a United We Dream organizer.
For Martínez, the issue is personal. Her father was deported to Mexico in 2006.
“It is a big win for kids and small children that go through the trauma of seeing their parents separated,” she said.
Martínez and her siblings are now over the age of 18, she said. Even if they were minors, her father had the chance of returning to the United States only on a limited basis .
Young immigrants like Martínez are calling for prosecutorial discretion in “End-Our-Pain” campaigns focused on one family at a time, using social media and videos and texts. They recently focused on a Mexican immigrant with two teenagers in Norman, Okla., who could be deported soon by the Dallas regional office.
Status unresolved
Deferred action for childhood arrivals doesn’t provide a legal status, according to Homeland Security. Both sides agree that requires congressional action.
“These directives are not de facto legalization programs,” said Shoba Sivaprasad Wadhia, an immigration law professor at Penn State Law School. “There are key differences between the remedy of prosecutorial discretion and a permanent solution.”
Among those who might be helped by the latest directive are children placed in foster care as a result of a deportation. In Texas, it’s unclear how many children are in such circumstances.
In a 2011 report, the advocacy group Applied Research Center estimated at least 5,100 children were in foster care nationally as a result of deportation proceedings.
Use hard to measure
It’s difficult to measure how many times discretion is applied.
ICE officials say they don’t keep track. But in a look at the nation’s immigration court backlog, about 8 percent of 325,000 cases were closed with discretion, according to the Transactional Records Access Center at Syracuse University. The nonpartisan center measures trends in the justice system using the Freedom of Information Act.
Wildes, Lennon’s attorney, takes a long view. He still practices law and has just written a book on Lennon and his wife Yoko Ono. She also had immigration troubles as she searched for a missing daughter in the U.S. snatched by an ex-husband.
“When I sued under the FOIA, I got a copy of every outstanding approval in the U.S.,” Wildes said. “It was over 1,800 cases. Today, prosecutorial discretion has expanded during the Obama years. I feel very gratified.”
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