Prosecutorial Discretion Is Not Amnesty

June 16th, 2012
by F. Grey Parker

Although a certain knuckle-dragger distracted us from the actual substance of yesterday's Presidential announcement on immigration policy, the new DHS guidelines are still the real story.

What's the bottom line here? What does it mean? As the AP reports:

"The policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for extended periods." EMPHASIS MINE

Reliably, the right wing went nuts. Malkin called the it a "stunt" that violates the "rule of law." Limbaugh shrieked that the administration had "broken the law." Rick Moran declared that the President was "pandering" and "acting like a king." The editors over at NRO labeled it "illegal amnesty" and accused the President of being "a little fuzzy on the subject of judicial review."

More rhetorical manipulation using the phrase "amnesty" was found HERE, HERE and HERE.

The push to smear the new guidelines as an "amnesty" is easily understood when this PEW poll on the impact of that particular phrase is taken into account. Language matters.

The problem is that it's not "amnesty." It's also neither a new fast-track to citizenship nor a scheme to suddenly expand the voter rolls with Democratic sympathizers as some on the fringe have implied.

What President Obama unveiled yesterday simply formalizes and ensures continuity for certain policies of prosecutorial discretion which immigration authorities have exercised for decades. What's more, the facts tell us that the Obama administration has been anything but soft on illegal immigration. Deportations since 2009 have been dramatically higher than under both W. terms combined (corroborations HERE, HERE, HERE, HERE and HERE.)

They've also been smarter.

The principal difference between Obama's enforcement of immigration law and that of his predecessors has been the targeting of the most dangerous and criminal violators and the prioritization of their deportations first. In fact, deportations of non-citizens convicted of crimes has increased by 70% since Obama took office.

This rational strategy has, predictably, drawn attacks from the GOP. Their 'who cares' approach insists upon a refusal to differentiate between otherwise law abiding young people who have lived here most of their lives, even those who have served in our armed forces, and violent criminals. They would deport them all without consideration for the contributions the former have made or the threat the latter present. They also give no thought to how we would pay to achieve their vision of the wholesale round-up, internment and expulsion of millions upon millions of people.

It does seem as if the biggest problem the right has with the announced policy is that it's not both stupid and cruel.

Just over a year ago, David W. Leopold, President of the American Immigration Lawyers Association, wrote a paper addressing the legal options available to the President and outlining precisely the parameters announced as policy yesterday:

"Deferred action is merely a temporary relief that confers no legal immigration status upon the noncitizen and therefore does not provide long‐term stability for the individual. DHS can initiate enforcement actions when the deferred action grant expires. But by temporarily choosing to delay an enforcement action against a foreign national, the agency can address humanitarian concerns which would otherwise be triggered by arrest, detention or removal. The regulations enable DHS to grant travel authorization for recipients of deferred action. DHS also has the authority to grant employment authorization for those granted deferred action. In this regard, deferred action provides a solution that temporarily suspends the enforcement of immigration laws when DHS determines that execution of enforcement is not warranted at that particular time." EMPHASIS OURS

This isn't amnesty. But it is legal, practical and humane. And that is driving the right crazy.