Bloggings On Dysfunctional Government
Immigration Kudos to ICE and USCIS -- Now All of Us Must Get to Work
Credibility is the cornerstone of reputation. That's why, despite the shock and awe that regular readers of NationOfImmigrators.com may experience, this blogger (who sees immigration dysfunction virtually everywhere, especially under the Obama Administration) now heartily applauds recent actions of two immigration agencies within the Department of Homeland Security (DHS) -- ICE (Immigration and Customs Enforcement) and USCIS (U.S. Citizenship and Immigration Services).
As suggested below and in a Bender's Immigration Bulletin Podcast I recorded on June 18 at the 2011 American Immigration Lawyers Association (AILA) annual conference in San Diego, Directors, Alejandro Mayorkas of USCIS and John Morton of ICE, as well as the President and DHS Secretary Janet Napolitano, must be commended for taking significant steps to improve the administration of immigration justice (and along the way help the economy).
Mr. Mayorkas, to a far greater degree than any USCIS Director or legacy INS Commissioner in the last 30 years, expresses sincere respect for the rule of law. He understands and requires compliance with the obligation of his agency's personnel to apply statutory immigration law in good faith as written and adhere to precedent decisions and national policies. Mr. Mayorkas has brought the dispassion and intelligence of a lawyers' lawyer to USCIS, making changes based on reason and law, without favoring any person or interest, and committing to a policy of justice and equality of treatment and access. (For any who may doubt or challenge my assertion, check out two sessions of the AILA conference in which Mr. Mayorkas offered his views [CD Nos. 17 & 86, purchase required]. If you think I routinely gush over the statements of USCIS officials at AILA conferences, disabuse yourself by checking out this prior rant.])
Mr. Morton -- despite a vote of no confidence by the ICE labor union -- has chosen to exercise leadership. He has released two significant policy memos encouraging his officers to exercise prosecutorial discretion, based on a 19-factor analysis, in favor of low-priority immigration violators and victims and witnesses of crime, and against perpetrators of violence and other serious felonies.
Most immigrants' rights groups chastised Mr. Morton, however, for not having gone far enough. They attack ICE for not surrendering on the star-crossed program known as Secure Communities that has ensnared and deported far more petty immigration violators than hardened criminals.
On the other hand, the nonpartisan Immigration Policy Center and AILA, the national immigration bar association, have lauded the new prosecutorial-discretion (PD) memos as positive moves. They argue persuasively that in the absence of comprehensive immigration reforms which would align America's broken and wobbly immigration system with our national interests, and in an era of limited resources, the memos reflect a leadership decision to apply "smart enforcement" policies. Smart enforcement, as the memos articulate, ensures that ICE's officers on the ground make individualized determinations of eligibility for prosecutorial discretion.
Noncitizens whose personal circumstances, immigration history and foreseeable path to legal status cause them to rank low on the enforcement-priorities list -- the memos declare -- should be given deferred action. Deferred action, in turn, makes them eligible for a work permit. On the other side of the PD equation, individuals with particularly unsavory backgrounds or with rap sheets suggesting that they are dangerous to the communities should be fast-tracked on the due-process train headed for a removal hearing. (One less understood but welcome aspect of the memos is that now an ICE attorney can set aside any Notice to Appear that he or she determines would involve an individual who is better suited for deferred action than a removal hearing, thereby freeing up precious judicial and executive resources to remove highly undesirable or dangerous noncitizens.)
Despite the deserving plaudits at the top of USCIS and ICE, it remains to be seen whether these interim, though important, initiatives will bear fruit. Will the line officers and supervisors of each agency embrace their leaders' moves? Or, as is perhaps more likely, will they engage in passive-aggressive behavior, palace intrigue and heel-dragging?
Given the ICE union's condemnation of Mr. Morton and his policy memos (and their probable unwillingness to excersise conscientious compassion), as well as the resistance of some within USCIS to Mr. Mayorkas' commitment to the rule of law, the stakeholder community must apply its own leverage. Here are a few things insiders and outsiders can and should do:
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At least until our politicians begin to act like leaders who value country over power, let us hope that the new memos and the new direction signaled by DHS allow a meaningful chance for American justice to prevail against the insensate mob.
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.