In the June 20 ID, Alan Lee gave such a thorough analysis of two recent memos by John Morton, director of ICE, stating that government officials would be allowed prosecutorial discretion with regard to deportation, that further discussion of the details would be redundant. The only question is what the significance of this revival of the concept of prosecutorial discretion over deportation, formerly known as "equities", might be, if any. The best guess is that the memos are a bone (or poison pill, depending on perspective) thrown to both sides in the deportation debate.
First, as Mr. Lee points out, the memos are not binding and are therefore meaningless from the standpoint of creating any enforceable rights. Whether or not to proceed with a deportation is entirely discretionary. Everything, or nothing, may be on the table in any given case. The only overriding consideration is that the decision whether to go ahead with a deportation proceeding or not must be consistent with agency goals. We all know what those goals are - 400,000 people kicked out of America every year.
At the same time, there is plenty of material in these memos to infuriate Republicans and other immigration opponents who want to deport every single last Latino or other minority man, woman and child in America. Merely recognizing prosecutorial discretion in principle, accepting the idea that some people not specifically protected by law may be granted relief from deportation anyway as a matter of equity, is guaranteed to enrage those who believe that our entire immigration system should consist only of border fences, immigration jails and removal proceedings.
Will the Morton memos turn out to have any practical significance at all, as opposed to just being a public relations stunt? The answer will probably depend on the results of next year's election. Conventional wisdom is that the election will be a referendum on the economy, the budget deficit, or on the farcial debate about "big government" vs. "small government".
(To illustrate just how false and deceptive that debate is, the same people who advocate "small government" as an excuse to take away the Social Security and Medicare lifelines for our seniors, are at the same time shouting for bigger and bigger government in order to lock up and throw out millions of immigrants with different skin colors or languages from the majority.)
This writer, however, believes that the election will be a referendum on whether America will continue to be a democracy, or whether it will openly adopt a corporate, quasi-fascist form of government such as the one we were heading toward during the George W. Bush "decidership" years, and many features of which have been retained or even made worse under Obama.
It is axiomatic that in a dicatorship, there is no such thing as immigrant rights. We are already seeing the seeds of a dictatorship within a democracy in our arbitrary, lawless immigration system, where the policies are made through administrative fiat by officials who are accountable to no one.
Moreover, Tea Party presidential propects such as Michele Bachmann and Sarah Palin have an ominous record of attacking their opponents as "Un-American" or unpatriotic, in a throwback to the McCarthy era. Neither one has shown the slightest understanding of what a democracy is or any interest in preserving the one we have (such as it is). Other Republican candidates want to impose loyalty oaths on Muslim American citizens, and many, if not all, Republicans and Tea Partiers woukl like to strip millions of American-born children of mainly Spanish-speaking parents of their birthright US citizenship.
As Hannah Arendt pointed out in her discussion of the Jews in Europe in the first half of the 20th century, persecution of any unpopular group of people (a "genus invisum", or "despised race" to quote Virgil), often begins with taking away their citzenship rights. In the case of America, as I have pointed out before, these rights rest on a more slender reed than most people realize, namely a 113-year old Supreme Court decision interpreting the 14th Amendment, US vs. Wong Kim Ark.
There is little reason to believe that this decision is any more safe from attack by a far right Supreme Court majority in our own time than much better known decisions such as Roe vs. Wade might be. There may be some very interesting times ahead for immigration, and American democracy itself, upon which the entire notion of immigrant rights depends.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years