Kelly claims he can’t use discretion in cases like that of Jesus Lara Lopez in Ohio, but the exercise of discretion in such cases has been a longstanding DHS practice
DHS Secretary John Kelly is either confused or lying about his authority to use prosecutorial discretion in individual deportation cases.
Last Friday, a ProPublica article revealed a previously unreported February 2017 memo from ICE that fully articulates the Trump Administration’s strategy to go after any and all undocumented immigrants. The memo contradicts Sec. Kelly’s repeated assertions that DHS is focusing enforcement against criminals and public safety threats.
Kelly claims hands tied on immigration cases
Later on Friday, the Washington Post quoted Secretary Kelly defending the Trump Administration indiscriminate immigration enforcement practices, while claiming that his hands are tied when it comes to the exercise of discretion:
These are court-ordered deportations. I get a lot of calls from members of Congress on individual cases. What I say to them is: ‘I’ve got a court order. I can’t ignore it.’
First of all, a court order in a deportation case doesn’t necessarily mean someone deserves to be deported. Immigrants are often ordered deported because of court errors that prevented them from attending their hearings, unluckiness in which judge they appeared before, and/or not having a lawyer who could help them make their case.
Secondly, here is what noted constitutional scholar and law professor Eric Posner wrote about prosecutorial discretion in the New York Times in 2014:
Congress typically appropriates money for regulators, gives the president some vague guidelines and enacts far more laws than he could possibly enforce, and then allows him to set enforcement priorities as he sees fit…
…the sensible thing to do in the area of immigration law is to bring removal proceedings against the most serious violators — typically, criminals — while leaving otherwise law-abiding noncitizens alone. Given that Congress has not appropriated nearly enough money to deport 10 million or more people, this type of priority-setting is unavoidable, and not merely wise. Indeed, the president is just following in the footsteps of his predecessors, who also focused removal efforts on dangerous aliens. Congress has acquiesced in this practice for years. The president’s discretion over immigration is deeply interwoven in our law. As the Supreme Court recognized just two years ago, in the course of summarizing the statutory scheme: “A principal feature of the removal system is the broad discretion exercised by immigration officials.”
Jesus Lara Lopez’s case
Take the case of Ohio resident Jesus Lara Lopez, a father of four U.S. citizen children who works hard, pays taxes, and who came to the attention of immigration authorities for driving without a license – in a state that doesn’t issue them to people without papers. Now he is facing imminent deportation to Mexico and separation from his family because, as Kelly would argue, the immigration court has ordered him deported. But that order came years ago, and Jesus was granted discretion up until Kelly’s DHS decided to target one and all. Kelly’s hands aren’t tied. What’s changed is that the Trump Administration’s initiated its aggressive deportation push. They seem intent on generating fear among undocumented immigrants so those who aren’t picked up and deported decide to pick up and self-deport.
A front page article in the Cleveland Plain Dealer, “Deportation heartbreak as ICE prepares to send Ohio father of four to Mexico,” highlights how Jesus Lara Lopez benefited from discretion in the past in order to provide for his American family and contribute to his larger community. In the process, the article reminds us that Secretary Kelly is flat-out wrong in regards to both of his claims that his hands are tied and that he cannot exercise discretion in such cases:
…He has no criminal record. With a valid work permit issued by the federal immigration officials several years ago, he has supported his family. He has paid taxes and never used public assistance for welfare, food stamps, housing or unemployment compensation.
Yet, Lara Lopez is among the tens of thousands of immigrants being swept up in President Donald Trump administration’s directive to immigration authorities to deport thousands of people in the United States illegally.
…For years, the U.S. Immigration and Naturalization Service (now Immigration and Customs Enforcement, ICE) did not seem to notice him, though ICE was always in his mind.
Then in 2008, he was pulled over for a minor traffic violation. He was cited for not having an Ohio driver’s license, which as an undocumented immigrant he could not get. The Huron County sheriff’s deputy reported his status to ICE. He was given an order of deportation in 2008, which he appealed to an immigration judge. He was allowed to stay and work.
In 2011 he lost the appeal, but was given permission to remain and work until if and when the deportation order was activated. Each year he checked in with immigration officials and had routinely been given an “order of supervision” with a work permit while his case was reviewed. He had expected to be able to remain, since his case was a low priority.
…[Immigration attorney David Leopold said] ‘Since 2008, Jesus did everything ICE asked him to do. He showed up every time he was asked, and did whatever they wanted. He presented all his tax records since 2002, showing he has been a taxpayer, which is more than our president has done,’ Leopold said.
‘He held down jobs and raised a family. He never collected welfare, food stamps, unemployment compensation or housing assistance. He has never been in trouble with the law, he attends church and is the kind of person we want to live here … ‘Officially, ICE wants to deport what Trump called ‘the bad hombres,’ people who have committed crimes like murder and drug dealing,’ Leopold said. ‘But they are also deporting people like Jesus in huge numbers, people who have committed no crimes.’
…’Cases like this are an incredible waste of ICE resources that only make it harder for the agency to identify and remove dangerous criminals,’ John Sandweg, the former acting director of ICE under the Obama administration, said in a news release he sent out after being contacted by America’s Voice. ‘The Administration’s focus on the low hanging fruit of the enforcement system only allows the bad guys to remain at large, weakening our public safety.’
According to Frank Sharry, Executive Director of America’s Voice Education Fund:
Secretary Kelly has discretion, he’s just choosing not to exercise it. He has told Congress he is going after the bad guys, but the recent memo undermines his credibility. Kelly doesn’t want to come clean because to do so would be to admit that his agency is intent on driving millions of people out of the country. And because this is both massively unpopular and will be viewed harshly by history, they’ve concocted a cover story designed to conceal their true objectives. Is he confused or lying? Members of Congress and the media should do what they can to find out.