The American Immigration Council and the National Immigration Law Center recently delivered a unified message urging the executive branch to use an immigration directive known as “prosecutorial discretion”. The 12 page letter (copy), signed by over 130 immigration law teachers and scholars, painstakingly lists a number of long standing legal foundations, historical perspectives, and precedents. The call to action is loud and clear. President Obama’s administration has a legal right to maximize its authority by using prosecutorial discretion – enforcing immigration laws when there are limited or scarce resources or a humanitarian reason - as frequently used in the past.
A well-thought-out case is made justifying the legality of prosecutorial discretion. The letter purposefully did not include a formal position on what steps the administration should take. However, the discourse highlights the legal and ethical options available to the Executive Branch of government to help protect undocumented immigrants, especially those with intellectual or economic promise, from removal based on humanitarian reasons. A number of administrations using the immigration directive were cited as examples – including President Obama’s immediate predecessor George W. Bush, George Bush Sr., and Ronald Regan.
The letter makes several claims about the White House's impact on immigration law (or the lack thereof!). It points out that President Obama has not contributed anything new to the immigration status. Particularly since “deferred action” had an existing designation years before he came into office. In other words, the Obama administration’s implementation of the Deferred Action for Childhood Arrivals (DACA) program essentially acts as an expansion to a pre - existing category in the immigration system. Further, Obama’s approach to immigration law enforcement appears apprehensive and investigative. Arguably, his hesitancy to use prosecutorial discretion has allowed unfair due process in detentions, as well as the removals of over two million people. Thus causing the United States to be `in the midst of a humanitarian crisis' due in part to the alarmingly high level of family separations.
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