The administration increasingly cites “prosecutorial discretion” in allowing illegal immigrants to stay.
The administration says an executive amnesty for illegal immigrants already present in the U.S. is imminent. In fact, it may already be underway.
Part of the plan the president is expected to issue would defer deportations for the illegal-immigrant parents of U.S. citizens and legal permanent residents, and Immigration and Customs Enforcement (ICE) officials appear to be preventing the deportations of such people already. The agency, according to multiple people interviewed, is increasingly citing “prosecutorial discretion” as it doles out deferrals of deportations.
Moises Herrera, an illegal immigrant from El Salvador who is now living in Boston, was about to be deported by ICE officials when a petition from his attorney stopped them cold. Herrera’s lawyer, Jeffrey Rubin, filed a simple form with ICE to prevent Herrera’s deportation; Rubin says the applications for a stay of deportation or removal are “being widely used right now for people with final orders of removal.”
“People file these stays, [and] they’re being liberally granted at this time,” Rubin says. “Two to three years ago I was able to accomplish this for some clients, but I see it more widespread over the past year.”
In Herrera’s case, ICE chose to exercise prosecutorial discretion in delaying his deportation but declined to reveal the details of its decision, citing privacy concerns. Though Rubin says he sees a trend of liberalization, an ICE spokesman suggests each case is decided on an individual basis and on the basis of the smallest details.
“While ICE may exercise prosecutorial discretion at any stage of an individual’s case, it is generally preferable to exercise such discretion as early as possible in order to preserve government resources,” ICE spokesman Daniel Modricker tells National Review Online in a statement. “At times, and often at the last minute, factors previously unknown are brought to ICE’s attention, as was the case in this instance.”
This is an alarm bell for immigration hawks such as Jessica Vaughan, the director of policy studies at the Center for Immigration Studies. “For most people, prosecutorial discretion is something that happens when it’s appropriate; now it’s almost viewed as an entitlement by immigration lawyers, like, ‘Why can’t my client get this?’” she says. “And that changes the dynamic a lot, and this is proof of that.”
Rubin says his petition stated that Herrera’s wife had just given birth to a boy — while Herrera was detained behind bars because of an outstanding deportation order against him — and that he also is responsible for the care of his 17-year-old daughter, who arrived in the U.S. in August as thousands of unaccompanied minors flooded over the southern border. After crossing the border with the help of a “coyote,” a human smuggler, she was apprehended by authorities — and then released into Herrera’s custody.
“I came here to work, she came here to study; we haven’t really done anything wrong, and we are not able to go to my country because it’s too dangerous,” says Herrera, with Rubin serving as his translator. “I believe the government is going to make things good for all of us.”
Herrera says he did not know his daughter had traveled with a coyote until after her arrival, but that he remains more concerned about her staying in El Salvador because gang members had threatened her life. Herrera says he also has a 13-year-old child who still lives in El Salvador.
He was slated to be removed from the country by plane when he received word that his deportation had been halted for a year. He is now looking to the president for a permanent fix. “I am very happy that, first to God, and then to the president if he signs this law because my son needs me here; he has a sickness,” Herrera says, referring to his newborn child who has a pulmonary illness.
Herrera’s story lines up with broader trends. Deportations made from the interior of the United States by ICE have dropped 34 percent in the past year and 59 percent since the Obama administration took office in 2009, according to a report from the Center for Immigration Studies. “The estimated 5 [million] illegal immigrants who would be officially covered by the president’s order could all turn themselves in to ICE tomorrow, and the agency’s ‘priorities’ would dictate that they be immediately freed without charges,” Stephen Miller, a spokesman for Alabama senator Jeff Sessions — an outspoken critic of amnesty — said in a statement.
Herrera’s own story substantiates that claim. In his case, Rubin says it cost a $155 fee to file the paperwork necessary to halt Herrera’s deportation. “We walk up here in Boston to an office, filed in person with a money order,” Rubin says. “I asked them to release him, and they did, and so we’re grateful that he has a stay of removal for one year.”
If and when the president issues his orders, many more will tell a similar story; and they, perhaps, won’t even have to pay that $155 fee.
— Ryan Lovelace is a William F. Buckley Fellow at the National Review Institute.