Please note: This blog post was originally published on Wednesday, August 24, 2011.
If you had to choose between prosecuting murderers and rapists or persons with traffic tickets, who would you give priority to?
Sort of a no-brainer, isn’t it?
You would think so, but the way the federal government has prosecuted illegal aliens accused of crimes has traditionally not followed this logic. On Aug. 18, however, the Obama administration announced that all 300,000 illegal aliens currently in removal proceedings or subject to final orders of removal will have their cases reviewed by the U.S. Immigration and Customs Enforcement (ICE), and many of them will have their cases terminated. Some will even be granted work permits.
This makes sense for several reasons. The first is that it will allow more focus to be put on prosecuting those accused of the most serious crimes. In addition, terminating some cases could reduce delays and backlogs.
There are over 10 million illegal aliens in the United States, and over 100,000 of them have been convicted of serious crimes. The 260 immigration judges in the country have a backlog of over 275,000 cases. This results in tremendous delays. If an illegal alien simply denies the charges against him, he can postpone his day of reckoning for up to two years.
Another drawback of the old system is that it often resulted in the painful separation of families. The fact that a wife is a green card holder and the children are U.S. citizens does not stop the government from deporting the husband even though he is the breadwinner of the family and has no prior criminal record. Clearly, there was a need for the system to be reformed.
The announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from anti-immigrant groups. As the rhetorical smoke clears, the big questions left unanswered we be who will benefit from this new program and how?
Clearly, DREAM Act students who are in removal hearings or are subject to orders of removal will benefit. DREAM Act students typically were brought to the United States as children by their parents, and are now either college students or college graduates. Such students and other requesting immigration benefits must be persons of good moral character.
Consider the Duran family. Twenty years ago, Jessica Duran and her two brothers were brought to the United States as children by their mother. They were placed in deportation proceedings in front of an immigration judge. The proceedings dragged on for many years. During this time, Jessica and her brothers all graduated from high school and later from college. In the meantime, their father became a permanent resident, and immediately sponsored them for green cards. Unfortunately, the waiting time for this process is almost 20 years, so they will be waiting in line for quite a while.
When the Durans came to our office last year, they had the final orders of deportation in their hands. We applied for naturalization for their father, and crossed our fingers that Congress would pass the DREAM Act, which would have prevented the government from deporting them. Although the father became a U.S. citizen, Congress failed to pass the DREAM Act. What now? Would ICE deport the wife and children of a U.S. citizen?
We never found out, because fortunately, a member of Congress introduced a rare private bill which saved the family from deportation.
Under the Obama administration’s new policy, DREAM Act children will no longer need private bills to protect them from deportation. They may even be able to obtain permits to work in the U.S.
What about DREAM Act students who are not under removal proceedings? The administration’s new policy at this point does not seem to provide them with work permits, but time will tell if this changes.
Who else will benefit from the new policy?
Spouses and children of persons serving in the U.S. Armed Forces will be safe from deportation, and may be able to obtain work permits.
Does the government actually place such persons under removal proceedings?
Yes, it does. Karina Magana, the wife of Air Force Staff Sergeant Luis Magana, a veteran of Iraq and Afghanistan, was ordered to appear before an immigration judge in Los Angeles recently.
Magana was a green card holder who had applied for U.S. citizenship. Why would the government want to deport her? Because it came to light at her naturalization interview that the government had issued her green card in error over five years before. Her U.S. citizen father had sponsored her, but the case dragged on for so many years that she had married and was pregnant with her first child. Her marriage placed her in another immigration category.
While this was clearly an error on the part of the government, the bureaucrats charged Magana with fraud. Sgt. Magana didn’t know how he was supposed to raise his two U.S. citizen children if he were deployed to Afghanistan again and his wife was deported. I had no answer.
The government’s prosecutor refused to drop the fraud charges. Fortunately, his supervisor was willing to do so, and now Magana is on her way to becoming a citizen of the United States.
These are but two examples of the type of cases, which are unnecessarily clogging the judges’ dockets.
As a former INS prosecutor, I believe in enforcing our immigration laws. However, there is a need to prioritize who gets prosecuted. There are simply not enough resources to prosecute everyone, and the government’s attempts to do so have separated families and delayed the deportation of the bad guys.
The new policy will get people like the Durans and the Maganas out of the system, while allowing prosecutors to go after criminals, drug peddlers, and terrorists.
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