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The Daily Signal
New Report
Strikes Serious Blow Against Obama Administration’s Defense in
Executive Amnesty Lawsuit
Hans von Spakovsky
May 15, 2015
The Department of Homeland Security’s inspector general, John Roth, has
dealt a serious blow against the Obama administration’s defense in the
lawsuit filed by 26 states against the immigration amnesty plan
announced by President Barack Obama on Nov. 20, 2014.
That plan is currently on hold due to a preliminary injunction order
issued by Federal District Court Judge Andrew Hanen, an order now being
appealed to the 5th Circuit Court of Appeals by the administration.
The crux of the defense asserted by Justice Department lawyers in
multiple briefs filed in the litigation is that the president’s actions
in this regard are simply an exercise of traditional prosecutorial
discretion by executive branch officials.
For example, in its opposition to the motion by the plaintiff states
for a preliminary injunction, the Justice Department claimed that
exercising prosecutorial discretion by deferring action on millions of
illegal aliens allows the Department of Homeland Security to “focus
limited resources on higher priority aliens.” Those “higher priority
aliens” are aliens who pose “threats to national security, border
security, and public safety.”
However, in a report published on May 4, Inspector General Roth says
that the Department of Homeland Security “does not gather and analyze
prosecutorial discretion data.” Therefore, Homeland Security does not
have the ability “to fully assess its current immigration enforcement
activities and to develop future policy.” Because the Department of
Homeland Security is not collecting this data and “does not have a
mechanism to continuously monitor its use of prosecutorial discretion,”
it lacks the ability to “improve future policy.”
In fact, because the Department of Homeland Security is not actively
monitoring the use of prosecutorial discretion, Roth concludes that
Homeland Security may “be missing opportunities to strengthen its
ability to remove aliens who pose a threat to national security and
public safety.”
Even when the Department of Homeland Security knows
about serious criminal violations by illegal immigrants in this
country, it is still refusing to deport large numbers of them.
So the very reason that the administration is using to justify
exercising prosecutorial discretion to grant what amounts to executive
amnesty to millions of illegal immigrants—the ability to focus on and
remove the most dangerous illegal immigrants—seems to be misleading at
best and specious at worst because the Department of Homeland Security
is not even collecting the information needed to adequately engage in
this type of prioritization of its enforcement efforts.
Even worse, the inspector general identified another “potential issue
that could affect DHS employees’ ability to make well-informed
decisions when exercising prosecutorial discretion.” Homeland Security
field personnel in its Immigration and Customs Enforcement division
told the inspector general that they don’t always “have access to an
individual’s criminal history in his or her country of origin.”
As a result, “aliens convicted of or wanted for a felony committed in
their home country, but not convicted of a felony or significant
misdemeanor in the United States may not be identified as a DHS
enforcement priority.”
This finding by the inspector general comes on top of the fact that
even when the Department of Homeland Security knows about serious
criminal violations by illegal immigrants in this country, it is still
refusing to deport large numbers of them.
According to information released by the U.S. House Judiciary Committee
at an oversight hearing of Immigration and Customs Enforcement held on
April 14, 2015, ICE let loose on the American public 36,000 convicted
criminal aliens in fiscal year 2013 and 30,558 in fiscal year 2014.
These aliens were “convicted of offenses involving dangerous drugs,
assault and domestic violence, stolen vehicles, robbery, sex offenses,
sexual assault, kidnapping, voluntary manslaughter, and even homicide.”
In fact, “27 percent of the aliens released were so called ‘level 1s’
according to the administration—the worst of the worst.”
House Judiciary Committee Chairman Bob Goodlatte, R-Va., also pointed
out that the “administrative arrests of criminal aliens declined 32
percent compared to” April of 2014.
All of this data appears to contradict the administration’s argument
that it is exercising prosecutorial discretion in order to prioritize
the removal of aliens who are a danger to public safety.
Not only is it not collecting the data needed to properly exercise
prosecutorial discretion, but it is releasing tens of thousands of
dangerous aliens with full knowledge of their criminal convictions and
criminal history. That is prosecutorial indiscretion of the worst kind.
The report of the inspector general is certainly relevant to the issues
now being considered by the 5th Circuit Court of Appeals, which is
reviewing whether the injunction issued by district court Judge Hanen
was both legally and factually justified. Although the report was
issued after Judge Hanen held a hearing on the case, issued his
injunction, and the case was appealed to the 5th Circuit, it can still
be brought to the attention of the appellate court.
Under Federal Rule of Appellate Procedure 28(j), a party to a case
(such as the 26 states in this litigation) can file a letter with the
clerk of the 5th Circuit advising the court of new “pertinent and
significant authorities” that have come to a party’s attention after
the party’s brief has been filed.
I would be very surprised if the Texas solicitor general, who is
arguing the case on behalf of the states, does not file a 28(j) letter
apprising the 5th Circuit of the May 4 inspector general report. There
is little doubt that report tends to undercut the strength of the
government’s argument.
Read this and other articles with photos and links at The Daily Signal
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