Last June, U.S. Immigration and Customs Enforcement (ICE) Director John Morton outlined criteria for prosecutorial discretion in a memo, which called on ICE officials to consider a range of factors in determining whether an individual should be deported or not. However, implementation of the memo’s directives have been slow and bureucratic. An important editorial this weekend from La Opinión, the nation’s largest Spanish language newspaper, decried the fact that “illegal reentry” has led to denials of prosecutorial discretion in several recent cases, despite sympathetic and compelling factors the government should take into account.
Writes La Opinion:
No one questions that such cases are a violation of the law. But, the roots an individual has with the community should be considered. This is one of the criteria that is supposed to be taken into account under the new policy of discretion, according to how it has been explained. Unfortunately, this hasn’t turned out to be the case. Blanca Cardenas of Los Angeles was separated from her family and sent to Tijuana because she had reentered the United States illegally and Jaime Martinez of Manitowoc, Wisconsin, is being held in detention waiting to learn whether his fate, if he will be separated from his wife and four children. Sadly, cases like that of Cardenas and Martinez are happening across the country. Even worse, since President Obama came to the White House, this type of deportation has increased in comparison to previous administrations. During the first half of last year, these cases accounted for 47% of criminal prosecutions for immigration violations.
Martinez was deported this weekend, leaving behind a wife and four children who are absolutely devastated.
According to Frank Sharry, Executive Director of America’s Voice Education Fund:
For thousands of immigrant families throughout the nation, the policies outlined in the prosecutorial discretion memo are not merely words on a page – they are a lifeline for keeping families intact. The guidance in the memo includes the common-sense rationale that mothers and fathers whose sole violations are tied to their desire to be with their families should be treated differently than serious criminals. However, the unfortunate truth is that even under this new policy, loving families continue to be separated.
Last June’s memo says that immigration agents and trial attorneys should weigh many factors before deciding to deport someone, including age at arrival in the U.S., family and community ties, and legal history (including time spent in the U.S. lawfully, existence or lack of any criminal violations, etc). The memo says, “This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.” Yet Morton recently told the House Subcommittee on Homeland Security that only 1% of pending deportation cases have been tabled under the new guidelines.
In another editorial, published earlier this month, La Opinión captured the sentiment of many who have been hoping for broad and generous implementation of the new prosecutorial discretion policy:
It is normal that the hopes of an immigrant community would rise when the federal government says it is going to use a more sensible and humane policy to review deportation cases. And, it is inevitable to feel deceived when once against the words ring false.
In the case of “illegal reentry” specifically, immigration agents and attorneys appear to be applying a “one strike and you’re out” policy, rather than following the memo’s words to the letter and weighing both the positive and negative factors in each case. Individuals like Blanca Cardenas and Jaime Martinez are seen by their communities as loving parents and upstanding residents—not “priorities” for enforcement. As long as DHS puts certain immigration violations above all other factors, Latinos and immigrants will continue to experience the disconnect of beloved community members being identified as “law enforcement priorities” and watching as they’re shipped off, with broken families left behind.