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U.S. immigration enforcement’s ‘prosecutorial discretion’ history dates to John Lennon

October 07, 2013 (1 min read)

Former Beatle John Lennon gave music many memorable songs.  But he also played a role in U.S. immigration policy.  In 1975, Lennon’s lawyer Leon Wildes fought to keep Lennon from being deported over a conviction for possession of cannabis resin in Britain.  The suit under the Freedom of Information Act brought to light a then-murky legal area of “prosecutorial discretion” also being used today for potential deportees who aren’t considered a high priority.

As Congress sputters on an immigration overhaul that could determine the fate of an estimated 11.7 million immigrants in the country unlawfully, the Obama administration has applied prosecutorial discretion in a series of directives.  One directive issued in August focused on immigrant parents in deportation proceedings.  It re-emphasized guidelines to keep families together.  How wide the directive’s use will be remains to be seen.

“With parents, it’s harder to make the argument that they are innocents like you can the children,” who were brought to the U.S. unlawfully, or overstayed visas, said Michael A. Olivas, a University of Houston law professor.  Deportations continue at a record pace, reflecting the dilemma within many federal agencies like the Department of Homeland Security.  The agencies are charged with enforcing the law.  But they also have the discretion not to enforce it.

“The new memo talks about family unity, but every year we send back 400,000 persons, including tens of thousands of U.S. citizens who are their children and have birthright citizenship,” Olivas said.  Olivas noted the long history of deportation discretion and cited the Lennon case to back his argument. ... 

Deferred action for childhood arrivals doesn’t provide a legal status, according to Homeland Security.  Both sides agree that requires congressional action.  “These directives are not de facto legalization programs,” said Shoba Sivaprasad Wadhia, an immigration law professor at Penn State Law School.  “There are key differences between the remedy of prosecutorial discretion and a permanent solution.”

Among those who might be helped by the latest directive are children placed in foster care as a result of a deportation.  In Texas, it’s unclear how many children are in such circumstances.  In a 2011 report, the advocacy group Applied Research Center estimated at least 5,100 children were in foster care nationally as a result of deportation proceedings." - Dianne Solís, Dallas Morning News, Oct. 6, 2013.