This week the Department of Homeland Security released two memos that challenge all past notions of prosecutorial discretion in immigration enforcement. The development makes it even more important for me to respond to the Feb. 17 article "100-plus Twin Cities businesses shut down, stand in solidarity with immigrants."
I applaud the paper's coverage of the immigration strike last Thursday. But I must address some erroneous statements from Sarah Janacek, who was quoted as a "Republican activist" in an effort to bring balance to the piece. Her comments risk causing even greater confusion in the minds of the public on this difficult subject.
First, Janacek said that she "know(s) of no Republicans who are not for legal immigration."
Really? One need look no further than our newly appointed U.S. Attorney General Jeff Sessions, who has been a leading voice in efforts to curb legal immigration. He has fought against guest-worker programs for immigrant laborers and visas for highly skilled foreign workers.
Roy Beck, the president of the group NumbersUSA, which advocates for steep reductions in immigration, has said of Sessions: "You're always looking for the people who understand that legal immigration has to be kept down."
What's more, there are Republican-led bills to curtail legal immigration, such as the one put forth last Tuesday by Sens. Tom Cotton of Arkansas and David Perdue of Georgia, which proposes to slash legal immigration by half. Cotton has said he reached out to President Trump last week, who promised to crack down on both legal and illegal immigration. Rep. Lamar Smith of Texas is expected to introduce a companion bill.
My second concern is over Janacek's statement that, "people don't take time to learn the difference between legal and illegal immigration," as if there is a simple bright line between the two.
The public is frequently misled into thinking this, when in reality there are hundreds of thousands of people living somewhere in the confused middle, waiting years for court decisions, backlogged adjudications, and quotas to become current on approved family and employment petitions.
Sometimes these people are working with authorization under prosecutorial discretion, or in a form of temporary protected status. Lawyers practicing in this quagmire know that immigration law is confusing and arcane, prompting courts to comment that it resembles "King Minos' labyrinth in ancient Crete," and is "second only to the Internal Revenue Code in complexity."
Immigration has become such a political hot potato that despite general agreement on both sides of the aisle that the system needs fixing, no comprehensive reform has occurred for decades. In the absence of legislative solutions, we have at least had something called prosecutorial discretion, which has allowed enforcement officers, judges, and others to look at otherwise law-abiding individuals and decide it isn't in our national interest to split families, remove bread-winners, cripple businesses, or leave crops to rot unpicked.
It has long been a priority to arrest and deport those who have committed crimes. The Obama administration deported more people than any predecessor, an estimated 2.5 million.
Border enforcement has been strong, too, which has led to net-zero immigration since 2009.
I worry that these truths don't matter in the political realm of "alternative facts," where a widespread misperception has been created that we are being overtaken by immigrants.
The Department of Homeland Security's new memos challenge past notions of prosecutorial discretion and make every undocumented immigrant a priority for removal (except those on DACA, Obama's program deferring enforcement against law-abiding young people who were brought here as children).
These memos add enforcement personnel, mandate detention over "catch and release" policies, and deny access to an immigration hearing for those here fewer than two years unless they have a valid asylum claim.
Immigration courts have long been avenues to humanitarian relief. We are now seeing that doorway closed to many.
If the stayed executive order banning nationals from seven countries caused panic and chaos weeks ago, I predict that the implementation of these memos will lead to sheer pandemonium. While Janacek said that Trump has done nothing to change the pace of deportation of illegal immigrants set by Obama, these memos indeed point us toward a future without humanitarian discretion.
Close ties to family members, U.S. employers and communities no longer matter, which leads me to pass along a question posed by one of my colleagues: "Are we no longer a nation of grace?"
Laura Danielson practices immigration law in Minneapolis and is the co-author of "Immigration Law and Practice in a Nutshell" and "Green Card Stories." She is a former adjunct immigration law professor at the University of Minnesota Law School.
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