Prosecutorial Indiscretion -
It is an axiom of governmental administration that prosecutors possess discretion. A prosecutor may not logically nor lawfully state that she or he does NOT possess the inherent power to exercise discretion (such power is obviously subject to limits, viz. constitutional constraints, statutory constraints, regulatory constraints and policy constraints). With that commonplace in mind, let's turn to today's announcement by USCIS (for the original document with numerous questions and answers from USCIS, see below), which says:
U.S. Citizenship and Immigration Services (USCIS) alerts eligible individuals NOT to submit a deferred action request under the Deferred Action Process for Young People memorandum issued by Secretary Napolitano on June 15. If you submit now, your application will be rejected. The Secretary's directive gives USCIS 60 days to create a process to accept these requests and we are unable to accept requests at this time. Please continue to check our website for updates.
Rejection of applications submitted before USCIS is ready to get to work and accept Deferred Action applications can be interpreted ONLY as a denial of the request of prosecutorial discretion for the lack of an administrative process, it cannot be interpreted as the lack of discretionary power, since such power is inherent in the office of the prosecutor, in this case, Mr. Mayorkas, Director of USCIS. Essentially, what Mr. Mayorkas, backed by DHS Secretary Napolitano, is saying is that until mid-August, prosecutorial discretion will continue to be exercised in the negative, that is the Obama administration will continue to act against DREAMers, despite Mr. Obama's clear public statements that he is directing DHS officials, including Ms. Napolitano and Mr. Mayorkas, to exercise discretion favorably toward DREAMers.
We are NOT splitting hairs here - after all, it is clear that DHS/USCIS appear to be developing a process to exercise discretion favorably, and that their current stance of exercising discretion against DREAMers who have the temerity to apply before the DHS/USCIS deadline appears to be only an administrative stance, not a substantive one -DHS/USCIS appear to be saying: it's just a matter of a short period of time, a few weeks hopefully. However, we are not sure that the future course of events will be as DHS/USCIS advertise. Already, some Republican Senators (may they live forever in infamy) have already written a letter to President Obama in strong terms against his announcement, and more ominously, Lamar Smith, Chair of the House Judiciary Committee (the committee with direct jurisdiction over DHS/USCIS's finances in these matters) has penned a detailed diatribe to the Director of ICE raising objection after objection designed to ensure that very few, if any, DREAMers actually get an Employment Authorization Document. Mr. Smith is a master parliamentarian, and a brilliant political strategist. It's a sure bet that he intends to grill Ms. Napolitano and Mr. Mayorkas real soon about the points raised in the aforementioned letter, with an eye to pressuring them into raising the standards for application so high that virtually no DREAMer ever qualifies for Deferred Action. And that brings us back to the issue of time. It is entirely believable that DHS/USCIS will soon advertise themselves as under fire from Mr. Smith and his fellow conspirators in Congress and will push back the announced 60 day time table to later, perhaps September or October. It would be greatly to Mr. Obama's political advantage to dangle a promise before hapless immigrants, and do nothing to actually deliver Employment Authorization Cards (all the while blaming Republicans such as Mr. Smith for the inaction), since this will arguably give the immigrant community a reason to turn out for him in November. This is why we suggest that USCIS's announcement quoted above can fairly be construed as a deliberate maneuver to buy political breathing room for the President all the while hoodwinking the immigrant community into a false sense of expectation that Mr. Obama's minions at DHS/USCIS will actually deliver anything to DREAMers.
Let us be clear - we are not throwing stones at the President or his staff at DHS, led by Ms. Napolitano. We will be the loudest to cheer the Administration when the first EADs come through (or in truth, next to loudest - for the loudest cheers will rightfully belong to the EAD beneficiaries who our nation has unjustly punished for so long). However, with the long record of broken promises by Mr. Obama (remember when he promised in the run up to the previous election that he would push for CIR in the first year of his administration - well, he broke that promise), and the infamy of going down in history as the President who broke more immigrant families than any other, it is fair to be skeptical about claims by DHS/USCIS. If DHS/USCIS really intend to deliver benefits, we urge DHS/USCIS to be equally as emphatic about the positive as they are about the negative - for instance, in the announcement quoted above, it would have been reassuring to read DHS/USCIS say in bold capitals: DREAMERS - WE ARE WORKING HARD TO ENSURE YOUR DREAMS COME TRUE, JUST GIVE US A FEW MORE WEEKS. That DHS/USCIS has chosen not to do so, but instead capitalized and underlined and bolded words designed to break DREAMers hearts, raises questions as to whether all this is smoke and mirrors orchestrated by Mr. Obama's political staff or simply bureaucratic bungling by DHS/USCIS - classic prosecutorial indiscretion.
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