The Connecticut Law Review
Monday, September 12, 2011
The Editorials on this page are the product of the Editorial Board. The views expressed are not necessarily those of any individual Board Member or of the Law Tribune’s management. The Editorial Board has no role in the management of the Law Tribune.
In the wake of mounting concern over its detention and deportation practices, the federal Immigration and Customs Enforcement agency (ICE) in June announced policy guidelines regarding the exercise of prosecutorial discretion in removal cases. Critics argue that ICE enforcement programs, designed to target and deport illegal immigrants identified as dangerous felons, instead have fostered community insecurity by seizing and deporting thousands of non-citizens with no criminal records or evidence of dangerousness. Indiscriminate enforcement actions are seen as deterring victims, witnesses, and plaintiffs from calling police and pursuing justice for fear of coming to the attention of ICE.
A notable local example occurred early on a June morning in 2007, when armed ICE agents descended on a primarily Latino neighborhood in New Haven. Without warrants or consent and without notice to local authorities, the agents raided numerous private residences and arrested 29 of the occupants. Eleven of those arrested, who were held in custody for days and, in some cases weeks, subsequently sued, alleging that the agents forced their way into their homes illegally, thereby violating their rights under the Fourth, Fifth, and 10th Amendments.
The 11 plaintiffs are represented by Yale Law School’s Jerome Frank Legal Services Organization. The plaintiffs, none of whom are fugitives, argue that the raids were not part of routine immigration enforcement. Instead, citing e-mails between federal officials as evidence, they claim that the raids were in retaliation against the City of New Haven for its decision to issue optional “Elm City Resident Cards” to all residents regardless of their legal status.
Washington Colala is one of those arrested in the 2007 raids. Although he posed no criminal or national security threat, and had a 15-year work history with the community, he was swiftly put into immigration proceedings and a removal order was issued. While he was appealing the removal order, his civil rights case was filed, naming him as one of the 11 plaintiffs. In addition, Colala is the primary witness for his roommate, also a plaintiff. After Colala lost his last appeal and deportation was imminent, his lawyers obtained a temporary stay so they could make their arguments before the federal judge assigned to the civil rights action.
Colala’s bid to stay in the country was denied last December by a sympathetic judge, Judge Stefan Underhill, who could find no basis in the law to forestall deportation orders issued by an immigration court and upheld by an appeals court. Clinic lawyers appealed to ICE Director John Morton to exercise discretion to allow Colala to remain in the country until his civil rights case is concluded. Ultimately, ICE consented to postpone Colala’s deportation for the duration of the lawsuit.
In June of this year, Director Morton issued a new policy regarding the use of prosecutorial discretion in similar situations. In a memo entitled “Certain Victims, Witnesses, and Plaintiffs” he directs that: “Absent special circumstances, it is … against ICE policy to remove individuals in the midst of a legitimate effort to protect their civil rights or liberties.”
A second memo calls on ICE officials to refrain from pursuing non-citizens with close family, educational, military, or other ties to the U.S. and instead focus on persons who pose a serious threat to public safety or national security. It establishes that ICE employees are to consider prosecutorial discretion on a case-by case basis, “without waiting for an alien or alien’s advocate or counsel to request a favorable exercise of discretion.”
Director Morton’s memos make ICE policy clear that prosecutors have, and should exercise, discretion to refrain from pursuing low-priority targets and victims of crime or civil rights violations. However, we note that prosecutorial discretion is a central feature in law enforcement generally, and should not be viewed as extraordinary in the immigration context. Furthermore, the memos establish no guidelines for discretionary review, and include no reporting requirements. At a minimum, ICE employees must be trained to apply the discretionary factors to each case, and to be held accountable when the policies set forth in the memos are not followed.
Unfortunately, even the minimal protections outlined in the Morton memos have already drawn the wrath of some members of Congress. Texas Rep. Lamar Smith immediately introduced a bill titled “Hinder the Administration’s Legalization Temptation Act” (or HALT), which would suspend discretionary enforcement until Jan. 21, 2013 — the day after the first Obama Administration ends.
This type of enforcement-only legislation is exactly the wrong way to address the overwhelming problems in our broken immigration system. We need comprehensive immigration reforms that account for current labor needs, end racial profiling, and provide immigrants with the rights expected under a civilized system of justice. Detaining more immigrants — as would happen if prosecutors had no discretionary authority under the HALT bill — diverts scarce enforcement resources away from the pursuit of dangerous criminals and exacts a needless human toll. A humane and rational system of justice would give eligible undocumented migrants some sort of official status — such as the New Haven Resident Cards and the Dream Act provide — that will bring them out of the shadows, into the workforce, and onto a path towards citizenship.
http://www.ctlawtribune.com/getarticle.aspx?ID=41560
