Update: August 12, 10:23 pm

The Hill reports that on August 12, Alberto Gonzalez, former Attorney General under President George W. Bush, has spoken out in support of using executive power to grant relief from deportation. See Ex-Bush attorney general backs executive action on immigration (August 12).


The Hill writes:

"But Gonzalez said the country should not let the 'souls of innocent children' be caught in a constitutional fight, citing the massive influx of young migrants who have crossed the border in recent months.

'This is not just a classroom exercise or court room drama', he said. 'This is a real world exercise involving human beings.'"

However, the same article reports that while Gonzalez said that border children should be given their day in court, they should not be released from custody before their deportation hearings, which could be months or years away.

The former AG might wish to take a closer look at the TVPRA, which requires that the best interests of the children be taken into account in any custody or detention arrangements pending their hearings. Holding them in lengthy detention or custody just to make the point that, in the former AG's words, the US "will enforce those laws to secure our borders", is a prime example of using the children as pawns in a legal battle over immigration which Gonzalez condemns in the previous quote cited above.

The following is my original post:

The hysterical and hypocritical accusations that President Obama is running an "imperial presidency" and should be impeached for using administrative power to grant relief from deportation ignore the fact that the doctrine of prosecutorial discretion in removal proceedings was already being used by his predecessor, George W. Bush. On October 24, 2005, William J. Howard, Principal Legal Advisor to ICE, issued a memo entitled simply: Prosecutorial Discretion.

The memo began by pointing out that OPLA (Office of the Principal Legal Advisor) was handling 300,000 removal cases in the immigration courts alone, not to mention 42,000 appeals to the BIA and 12,000 motions to reopen each year with only about 600 attorneys, allowing an average of only 20 minutes to prepare each case. The memo also stated that

"...we must prioritize our cases to allow us to place greatest emphasis on our national security and criminal alien dockets."

Sound familiar? The memo continued:

"...the universe of opportunities to exercise prosecutorial discretion is large."

The memo went on to give examples in which using prosecutorial discretion not to initiate removal proceedings, or to terminate proceedings already begun, might be appropriate. These included, among others,: immediate relatives of military service personnel, clearly approvable I-130/I-485 Adjustment of Status, and, significantly, sympathetic humanitarian factors. On this latter point, the memo stated:

"Deferred action should be considered when the situation involves sympathetic humanitarian circumstances that rise to such a level as to cry for an exercise of prosecutorial discretion."

The memo concluded:

"Prosecutorial discretion is a very significant tool that sometimes enables you to deal with the difficult, complex and and contradictory provisions of the immigration laws and case involving human suffering and hardship. It is clearly DHS policy that national security violators, human rights abusers, spies, traffickers both in narcotics and people, sexual predators and other criminals are removal priorities. It is wise to remember that cases that do not fall within these categories sometimes require that we balance the cost of an action versus the value of the result. Our reasoned determination in making prosecutorial discretion decisions can be a significant benefit to the efficiency and fairness of the removal process."

Many of the same politicians who are now threatening President Obama (who has deported people at a much faster rate than his predecessor) with impeachment over the use of executive power in removal proceedings were serving in Congress when this memo was issued less than 10 years ago. I do not recall that any of them were calling for President Bush to be thrown out of office for using his power to grant relief from deportation then.

Therefore, the furor over "executive overreach" in President Obama's DACA program (which will soon no doubt be called "Obamnesty" by immigration foes - I am surprised that they haven't thought of that yet!), is phony from alpha to omega.

If a Republican president were in power (such as George W. Bush, who was given to issuing signing statements claiming the right to ignore laws that he didn't like), no one would be hearing a word about an immigration-related "imperial presidency" - at least not from that side of the aisle.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been serving employment-based and family-based immigrants from many parts of the world for more than 30 years. His email address is algaselex@gmail.com