Last year the administration added a revolutionary new weapon to its immigration enforcement arsenal -- common sense.
In June, John Morton, Director of Immigration and Customs Enforcement, announced that the agency would employ "prosecutorial discretion" in its enforcement of the immigration law, prioritizing the deportation of illegal immigrants who pose security risks -- dangerous criminals and terrorists. Prosecutorial discretion gives ICE agents the ability to decide how to best use finite resources to enforce the immigration law so that our communities and country are protected from those who would do us harm. Clearly, the danger to a community is less likely to come from a breast-feeding mother or gifted student than from a dangerous felon or terrorist.
That smart enforcement policy was extended to the immigration courts a few months later by Janet Napolitiano, Secretary of Homeland Security, when she ordered a review of the nearly 300,000 pending deportation cases in an effort to ensure that resources are being used wisely. After an initial review of 12,000 deportation cases in Denver and Baltimore the department has reportedly recommended "Administrative Closure" of 1,667 cases, about 14 percent, of those reviewed.
Not surprisingly anti-immigrant restrictionists on and off Capitol Hill are crying foul, relying on their favorite pat sound bite, "backdoor amnesty." Rep. Lamar Smith (R-Texas), Chairman of the House Judiciary Committee, complained, "If these results play out nationwide, tens of thousands of illegal immigrants will benefit and tens of thousands of Americans will find it harder to get jobs. How can the Obama administration justify granting work authorization to illegal immigrants when so many American citizens don't have jobs?"
Chairman Smith's knee-jerk response failed to explain that an administratively closed case is not the same as a dismissed case. It remains on the deportation docket and can be reactivated by ICE at any time. Translated into plain English, administrative closure merely means an immigrant's deportation case is placed on the back burner while higher priority cases are prosecuted and aliens who pose a security risk to America are deported.
Smith's statement also incorrectly suggests the program threatens American jobs. Nothing could be further from the truth. Administrative closure of a deportation case does not take a single job away from a U.S. worker. Nor does it give anyone a green card or automatic employment authorization. What it does is free up ICE prosecutors to go after those who pose a threat to our communities. If implemented successfully nationwide, the policy will help unclog immigration courts, freeing up the Department of Homeland Security to enforce the immigration law in a way that will keep American citizens safe.
To be sure, temporarily closing low priority immigration cases has its challenges. For immigrants seeking refuge from persecution or whose U.S. citizen family member faces exceptional and extremely unusual hardship, the better course might be to seek the input of all parties concerned, including the immigrant, and consider allowing the case to proceed to trial before an immigration judge. This way a final decision can be made -- up or down -- on whether or not the immigrant should be deported. It would also promote judicial economy and efficient use of government resources.
Rep. Lamar Smith might be shy to admit it, but he deserves a lot of credit for the administration's implementation of prosecutorial discretion in immigration enforcement. In 1999 he and other members of Congress championed the issue by writing a letter to then-Attorney General Janet Reno in which they implored her to use prosecutorial discretion in immigration cases. The lawmakers reminded her that "the principal of prosecutorial discretion is well established" in the law, and gives immigration agents discretion to "terminate" deportation proceedings in appropriate circumstances.
Smith and his colleagues were spot on. Smart enforcement of the nation's immigration laws makes sense. It will help secure our borders, protect American families, and enhance our national security.
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