New York Daily News (Opinion): Stop deporting harmless immigrants: Many pose no risk, but feds expel them anyway
When I was district attorney, facing a flood of new arrests every day, I learned the critical importance of prosecutorial discretion. Given limited resources, it is essential to focus on the most serious cases, exercise leniency toward those who deserve it and dismiss unprovable cases at the earliest possible stage.
Federal immigration officials also face a flood of new cases. But recent data suggest that they are not exercising their discretion wisely or effectively.
Figures from U.S. Immigration and Customs Enforcement (ICE) disclose that the federal government cannot effectively prosecute even 4% of its potential caseload annually. Long ago, the government should have made sensitive policy decisions about when and against whom to seek deportation, and made sure those decisions were carried out.
Regrettably, on too many occasions, the government's exercise of discretion has been little short of folly. I vividly recall President Richard Nixon's unrelenting efforts to deport a man he believed to be a threat to America: John Lennon.
Recent administrations have attempted to be more rational. For more than a decade, the Homeland Security Department has published sound criteria for the exercise of discretion in removal cases. But then, too often, those principles have simply been ignored.
ICE Director John Morton issued a memorandum this year instructing all ICE employees to follow these principles in enforcing immigration laws. Priority one would be to focus enforcement efforts on deporting undocumented immigrants who pose a danger to national security, or a risk to public safety. And where cases did not merit prosecution, the director instructed his agents to dismiss them promptly.
It was a great directive - if only it had been followed. Now, more than six months later, the statistics show that the backlog of cases has only gotten worse, and the focus of prosecution even less rational.
A study by a research center based at Syracuse University discloses that by the end of July, the backlog of pending cases before our immigration courts had reached an all-time high - more than a quarter of a million cases, an increase of 3.7% over the backlog just three months earlier. The average length that a pending case has been awaiting review is now a staggering 490 days. For no sane reason I can imagine, Armenians face even bleaker odds: Their cases have been pending, on average, nearly twice as long - 923 days.
One immigration attorney in Los Angeles recalls getting an adjournment date in one of his cases. "What year, judge?" he asked.
All this might be less vexing if immigration officials had been executing the ICE director's supposed top priority, focusing on public safety. But most disturbing of all, the figures show just the opposite is true.
Of ICE's massive docket, only 8.3% consisted of "criminal cases" - persons charged with criminal activities or actions adverse to national security or aiding terrorism. That's down from 9.1% the year before. Clearly, the staff did not get the message on the executive policy.
And even the dwindling percentage of "criminal cases" includes too many that simply do not merit prosecution. Thirty-four percent of those persons arraigned in New York City Criminal Court eventually have their cases dismissed. Those defendants should simply be allowed to continue with their lives. But New York correction officials routinely refer detainees reporting non-U.S. places of birth to 15 ICE inspectors stationed at Rikers Island.
As a result, many defendants find that posting bail or winning their criminal case has left them in an even worse predicament: facing an immigration detainer and potential deportation.
When discretion is not exercised thoughtfully, the law ceases to be an instrument of justice. When immigrants cannot rely upon rational enforcement of our deportation laws, they become afraid to report a crime or to file an income tax form, lest they come to the attention of ICE. A victim of domestic violence may hesitate to report the father of her children to authorities if she believes the next step will be his mandatory deportation.
What is to be done? We need not wring our hands searching for solutions.
The Homeland Security Department has already published a small library of well-reasoned policy papers stating exactly what must be done. All that is needed is the political will to do it.
Morgenthau, former Manhattan district attorney, is of counsel at Wachtell, Lipton, Rosen & Katz.
When I was district attorney, facing a flood of new arrests every day, I learned the critical importance of prosecutorial discretion. Given limited resources, it is essential to focus on the most serious cases, exercise leniency toward those who deserve it and dismiss unprovable cases at the earliest possible stage.
Federal immigration officials also face a flood of new cases. But recent data suggest that they are not exercising their discretion wisely or effectively.
Figures from U.S. Immigration and Customs Enforcement (ICE) disclose that the federal government cannot effectively prosecute even 4% of its potential caseload annually. Long ago, the government should have made sensitive policy decisions about when and against whom to seek deportation, and made sure those decisions were carried out.
Regrettably, on too many occasions, the government's exercise of discretion has been little short of folly. I vividly recall President Richard Nixon's unrelenting efforts to deport a man he believed to be a threat to America: John Lennon.
Recent administrations have attempted to be more rational. For more than a decade, the Homeland Security Department has published sound criteria for the exercise of discretion in removal cases. But then, too often, those principles have simply been ignored.
ICE Director John Morton issued a memorandum this year instructing all ICE employees to follow these principles in enforcing immigration laws. Priority one would be to focus enforcement efforts on deporting undocumented immigrants who pose a danger to national security, or a risk to public safety. And where cases did not merit prosecution, the director instructed his agents to dismiss them promptly.
It was a great directive - if only it had been followed. Now, more than six months later, the statistics show that the backlog of cases has only gotten worse, and the focus of prosecution even less rational.
A study by a research center based at Syracuse University discloses that by the end of July, the backlog of pending cases before our immigration courts had reached an all-time high - more than a quarter of a million cases, an increase of 3.7% over the backlog just three months earlier. The average length that a pending case has been awaiting review is now a staggering 490 days. For no sane reason I can imagine, Armenians face even bleaker odds: Their cases have been pending, on average, nearly twice as long - 923 days.
One immigration attorney in Los Angeles recalls getting an adjournment date in one of his cases. "What year, judge?" he asked.
All this might be less vexing if immigration officials had been executing the ICE director's supposed top priority, focusing on public safety. But most disturbing of all, the figures show just the opposite is true.
Of ICE's massive docket, only 8.3% consisted of "criminal cases" - persons charged with criminal activities or actions adverse to national security or aiding terrorism. That's down from 9.1% the year before. Clearly, the staff did not get the message on the executive policy.
And even the dwindling percentage of "criminal cases" includes too many that simply do not merit prosecution. Thirty-four percent of those persons arraigned in New York City Criminal Court eventually have their cases dismissed. Those defendants should simply be allowed to continue with their lives. But New York correction officials routinely refer detainees reporting non-U.S. places of birth to 15 ICE inspectors stationed at Rikers Island.
As a result, many defendants find that posting bail or winning their criminal case has left them in an even worse predicament: facing an immigration detainer and potential deportation.
When discretion is not exercised thoughtfully, the law ceases to be an instrument of justice. When immigrants cannot rely upon rational enforcement of our deportation laws, they become afraid to report a crime or to file an income tax form, lest they come to the attention of ICE. A victim of domestic violence may hesitate to report the father of her children to authorities if she believes the next step will be his mandatory deportation.
What is to be done? We need not wring our hands searching for solutions.
The Homeland Security Department has already published a small library of well-reasoned policy papers stating exactly what must be done. All that is needed is the political will to do it.
Morgenthau, former Manhattan district attorney, is of counsel at Wachtell, Lipton, Rosen & Katz.
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