Ric Llewellyn

Saturday, Sep 10 2011 12:00 PM

RIC LLEWELLYN: Noisy special interests drive ICE policy

By Ric Llewellyn

Immigration policy is a significant issue in Kern County. So it's no surprise the June 17 memo issued by John Morton, director of Immigration and Customs Enforcement, stirred some reaction here. It was all about "prosecutorial discretion" in immigration law enforcement.

Talk about spin. I got dizzy reading through reports and commentary on the "new" ICE memo clarifying enforcement policy.

But after all the dust settled the "new" memo was really nothing new at all. Essentially the same policy of prosecutorial discretion has been in place at least since 2000. The discretion policy is guidance for the federal immigration services necessitated by the passage of the 1996 Immigration and Nationality Act.

Nevertheless, if you advocate enforcement of the existing immigration law you may be complaining that the ICE memo back doors the DREAM Act or opens the door to amnesty.

If you support comprehensive immigration reform you probably laud the memo as a welcome and humane step in the right direction.

I was surprised to see that even the LGBT community got in on the spin noting "binational LGBT couples" could receive special consideration under the guidance memorandum.

When I read the memo it was clear that it is an advice document intended to create consistent application of "prosecutorial discretion" as it relates to the law enforcement mission of ICE, not a change in immigration policy.

Talk about being set up to fail. While the ultimate decision-making authority rests with the director, this memo specifically authorizes individual agents, officers, special agents, attorneys and their supervisors to make the call on proceeding at their particular levels of enforcement.

Instead of one consistent policy -- enforce the law equally -- there will now be many and probably conflicting decisions on enforcement.

Earlier guidance not only acknowledged the uniqueness of every enforcement action but the different thinking of the people making the decisions. In other words, every case is different and every evaluation is unique. Therefore, there is no standard for enforcement.

Being pragmatic, I can see how prioritizing cases might be necessary. Declaring "the bad guys will be our top priority" makes sense. But going on to say "and we may defer or refuse to take enforcement action against college students, pregnant women and people who are ill" is a terrible idea.

Imagine a car carrying four college athletes is pulled over at 1 a.m. by the local police department. The license plate light is out. Big deal.

Then the officer notices a baggie of pills in the center console and removes the driver. She says she has a prescription but the bottle is at home.

The passenger gets out of the car and becomes belligerent. When a second officer arrives, the passenger becomes combative and is handcuffed.

When the rear passengers are taken out of the car it is discovered that one has a joint in his shirt pocket and the other is carrying nunchuks in a backpack.

What an unlucky and unfortunate chain of events. Imagine the potential impact on the athletes, their families and their academic careers.

Suppose the police had implemented a new policy on discretionary enforcement. (We are all aware of our budget problems.) Would it be just and humane to let them go because they are student athletes?

We should also ask if it would be just and humane to arrest and prosecute them if they were some rowdy 20-year-olds from a rough part of town.

That idea is incomprehensible. Who would stand for it? But how much worse would it be to say that as a matter of policy we would let the student athletes go but prosecute the rowdies because we don't have resources to do both?

That's the situation Director Morton's memo establishes. When people and groups endorse a discretionary policy that favors them they tacitly sanction the notion that the unruly boys should go to jail while the student athletes walk.

All the special interests scrambling around this internal advice document was an artless play for political position. But as the memo and its predecessors clearly state, immigration law is still fully effective. There is no authority allowing any illegal acts by officers or agents of ICE.

The fact that a variety of groups with special agendas weighed in on the new memo in support of their particular interests gives us a glimpse into the future of American immigration enforcement policy. Noisy special interests and tenacious attorneys continue to drive the policy. We would be better served by equally enforcing the law.

Some people might characterize my position as "anti-immigrant." I am not anti immigrant; I am anti illegal immigration. In the same way I am not anti driving, I am anti drunken driving. And I am not anti shopping, I am anti shoplifting.

Or to state it affirmatively I am for equal enforcement of the Penal Code, the Vehicle Code and Title 8 of the U.S. Code.

-- Ric Llewellyn is one of three community columnists whose work appears here every Saturday. These are the opinions of Llewellyn, not necessarily The Californian. You can email him at llewellyn.californian@gmail.com. Next week: Heather Ijames.

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