President Obama, despite a MSM that is, by and large, still firmly supporting him – even unto the utter degradation of whatever vestiges of journalistic ethics they still possessed – is once again experiencing a nightmare.

This particular nightmare is the belief that he illegally and unconstitutionally de facto enacted the DREAM Act via executive order even though the Senate killed the bill in December, 2010.

Despite the MSM’s apparent refusal to report upon it, the news of Obama’s actions of Friday, June 24,2011 leaked out via alternative journalistic outlets on the internet, raising the expected combination of outrage from Americans and praise from Liberals and their minority tenants.

This particular post, apparently by The Examiner (link is restricted) has been making the rounds of the internet this weekend. It’s been cited by both Conservatives and Liberals, though obviously with differing intent and emphasis.

On Friday, the Obama administration issued a memo announcing that federal immigration officials do not have to deport illegal aliens if they are enrolled in any type of education program, if their family members have volunteered for U.S. military service, or even if they are pregnant or nursing.

This new policy of “prosecutorial discretion” was quietly announced on Friday afternoon, and completely ignored by the mainstream press.

Author of Arizona’s SB1070 and Kansas’ secretary of state, Kris Kobach, told the Daily Caller: “They’re pushing the [immigration] agents to be even more lax, to go further in not enforcing the law. At a time when millions of Americans are unemployed and looking for work, this is more bad news coming from the Obama administration… [if the administration] really cared about putting Americans back to work, it would be vigorously enforcing the law.”

While the facts involved in this are evidenced by a July 17, 2011 internal memorandum by the ICE’s Director to all immigration enforcement personnel, the conclusion that Obama has illegally and unconstitutionally enacted the DREAM Act via executive order is a long stretch.

The memo, and presumably the executive order that prompted it, deals solely with enforcement priorities for a law enforcement agency that doesn’t have the resources to meet the full scope of the demands that the law places upon it.

When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to:

  • The agency’s civil immigration enforcement priorities;
  • The person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
  • The circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  • The person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
  • Whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  • The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  • Whether the person poses a national security or public safety concern;
  • The person’s ties and contributions to the community, including family relationships;
  • The person’s ties to the home country and condition~ in the country;
  • The person’s age, with particular consideration given to minors and the elderly;
  • Whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  • Whether the person or the person’s spouse is pregnant or nursing;
  • Whether the person or the person’s spouse suffers from severe mental or physical illness;
  • Whether the person’s nationality renders removal unlikely;
  • Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  • Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  • Whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

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.

The June 17, 2011 memo from the ICE Director, John Morton then goes on to provide further, more succinct guidance to the ICE’s officers, agents, and attorneys:

That said, there are certain classes of individuals that warrant particular care. As was stated in the Meissner memorandum on Exercising Prosecutorial Discretion, there are factors that can help ICE officers, agents, and attorneys identify these cases so that they can be reviewed as early as possible in the process.

The following positive factors should prompt particular care and consideration:

  • Veterans and members of the U.S. armed forces;
  • Long-time lawful permanent residents;
  • Minors and elderly individuals;
  • Individuals present in the United States since childhood;
  • Pregnant or nursing women;
  • Victims of domestic violence; trafficking, or other serious crimes;
  • Individuals who suffer from a serious mental or physical disability; and
  • Individuals with serious health conditions.

In exercising prosecutorial discretion in furtherance of ICE’s enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:

  • Individuals who pose a clear risk to national security;
  • Serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
  • Known gang members or other individuals who pose a clear danger to public safety; and
  • Individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

It cannot be disputed that the criteria for illegal immigrants to benefit from the DREAM Act are included within the criteria for prosecutorial discretion, but this is to be expected. Those same sorts of illegal immigrants that some want to grant amnesty are utterly unsurprisingly the sorts of illegal immigrants that pose the least threat to America and are, hence, low enforcement priorities.

Whether we Americans like it or not, the ICE – as is similarly the case with all current law enforcement agencies – has limited resources to remove those illegally in the United States. Therefor the ICE must prioritize its use of its enforcement personnel, detention space, and removal assets in order to ensure that the illegal immigrants it removes represent, as much as is reasonably feasible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.

Obama hasn’t provided a path to naturalization for these illegal immigrants. The proverbial Sword of Damocles still hangs over their heads and arrest, detainment, and/or deportation could happen to them at any time if ICE resources become available. The POTUS has just formalized the existing unwritten guidelines for where and how the ICE focuses its efforts to get the American people the maximum protection and return on their investment.

~*~

Don’t make the mistake of thinking I’m sympathetic towards Obama in this issue. This is a nightmare that Obama has crafted for himself by his short but consistent history of usurping the powers of the Legislative via executive orders. Whatever pain he suffers over this is just well-deserved and not too-delayed karma.

There’s no reason, however, to throw the baby out with bath water, and setting a framework for prosecutorial discretion by the ICE is a sane thing to do and to the benefit of Americans. I’d not like to see Obama, ever campaigning as he is, to reverse himself on this to our detriment.

Reflections From a Murky Pond

 

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