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Deportations Reviewed, Prosecutorial Discretion

The Homeland Security has promulgated new advisories to all trial lawyers in the Immigration Service to review the advisability of terminating proceedings in cases where infractions of the law by aliens have been trivial and deserve compassionate treatment such as those who have close family ties to Americans or permanent residents, namely spouses, children and parents. For the last three years the government has been fierce in its program to remove undocumented aliens despite the administration’s promise to only seek to remove aliens who have had serious criminal convictions or who represented a threat to national security. As a result of these harsh measures more aliens have been arrested and deported in this Administration than in the previous Administration notwithstanding that these removed aliens had close family in the U.S. and only having committed minor infractions such as driving without a license or for walking down the street with a bottle of liquor exposed.

The trial attorneys for Immigration will now begin reviewing all removal cases on the calendar to see whether these immigrant respondents are students, elderly or infirm who have spouses and/or children and/or parents who are Americans or permanent residents. Their cases should be indefinitely adjourned or terminated according to the directive from the Administration. This directive appears to indicate an issue of the Immigration Service’s inability to handle the huge case load that the Judges are unable to handle. Pending cases now with the Courts exceed 300,000 cases.

The Immigration Service is preparing recommendations to lawyers for appropriate
joint motions with Trial Counsel to terminate cases that would disrupt families who depend
emotionally and economically on these detained aliens.

These Immigration advisories contain no indication as to how prosecutors may be challenged as to errors in mistaken judgment or inaction. These Administration advisories do not provide guidelines that attorneys may challenge as to abuse of discretion. Also immigrants whose cases are indefinitely postponed or terminated have no clue as to how they may receive permission to work. If no provision is made for work authorization, these aliens will be returned merely to the twilight zone in which the government has allowed and permitted a vast underclass to be here without a way to support themselves or their families. This program could result in no solution at all, in other words, undocumented aliens will be visible in being allowed to stay, but invisible as to how they can support their families and themselves. For students there is no indication that they would receive social security cards or the means by which they can be confident that they would be able to stay in school because no provision has been declared as to how long the program will last.

As has been the case for over a decade, the administration and Congress has sidestepped reform only putting a band-aid on what is a deep and festering wound. There are an estimated 12 million undocumented aliens in the U.S. including minors who were brought to the U.S. while they were minors, or the elderly and infirm, and many who have close family ties in the U.S. consisting of American spouses, children and parents. This advisory opinion of the Department of Homeland Security fails to provide real reform which would bring this subclass into the light. Full scale reform would immeasurably enrich the country by providing the skills and conscientious work habits of immigrants. In the past, immigrants have always benefitted the country, adding to the richness of our society by their diversity and aptitudes.

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