Recently there has been much discussion in the media about how the White House has issued directives to beef up immigration enforcement and that the measure will target huge numbers of persons who might be in this country illegally including those who have only been charged with a crime for removal.
Setting aside what it means to be in the US “illegally”, it is important to identify who is subject to removal. Any non-citizen who is in the US without permission, who has entered the US with a visa and that visa (or permission to remain) has expired or if they have committed one of a number of enumerated offenses in the statute is subject to removal. The list of offenses is contained in the immigration statute, commonly referred to as the deportability provisions of the Immigration and Nationality Act. It is not helpful to consider these “violations” as crimes for under US law these are not treated as such. In fact if they were to be characterized or treated as crimes the defendants would be entitled to many more protections including legal counsel at government expense.
Under existing law while the government may remove someone who is deportable they can only go after categories of people listed by Congress in the statute. In other words, if a person is otherwise not deportable the government cannot get a removal order against someone who has been charged but not convicted of a crime. The reason for this is that the immigration statute requires that when the government is pursuing a case against someone for criminal activity, a criminal charge standing alone which has not resulted in a conviction may not be used to support the deportation order.
An immigration officer is like the beat cop who cannot on her own create their own reasons for locking someone up, there must be a clear defined basis found in the statute. Deportability grounds while numerous must clearly define the persons who are subject to them.
This takes us to the confusion about something called “prosecutorial” discretion – which refers to the broad discretion that a police (or immigration) officer’s or immigration officer to not go after every possible law breaker (or immigration violator). To do otherwise would cause the officer to waste vast amounts of resources pursuing cases which required inordinate amount of precious resources. So in applying the law the officer has to make a decision about where the government’s already strained resources will be applied most effectively. You may have experienced this while driving – would you expect a highway patrol officer to go after the person driving at 65 in a 55mph zone or the burglary call at the next exit? Hardly – just as the police officer has to make a discretionary determination about how he exercises her authority, the immigration officer has to make similar choices.
The commonly held view is that there are 10-11 million undocumented people in the US. Within that group are people who have been in this country, some for decades, others who have been waiting for permanent residency because they are married to or are children of US citizens or permanent residents. Still others have other ways that they might eventually get to become permanent residency. Like past Administrations, the Obama Administration made a decision that some of these people would be placed on a lower priority for deportation – in short that they would go after others who were easier deportation targets. Understand as well that an immigration officer cannot on their own deport that person, the Constitution requires that the person have a chance to show why they should not be deported because of one of the fore-mentioned reasons. And that process is very time consuming.
So when you hear someone say that DHS officers are going to go after everyone in the US who is here in an illegal status, they are either being dishonest or are suggesting that they not be smart about how they are prioritizing their limited resources. If they say that they are going to deport everyone the process could be phenomenally expensive and take decades to complete with limited results.