Today’s Bad Immigration Reporting

By January 30, 2015Updates

Courtesy of Vox (which I noticed because I often read it):

Contrary to a popular opinion, reflected here, neither deferred action, eligibility, nor even a grant of deferred action, takes someone ‘off-limits’ for enforcement.

Firstly, USCIS can still deny someone’s application in discretion. Meeting the guidelines does not mean that you are entitled to protection: “U.S. Citizenship and Immigration Services (USCIS) retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met.”

The agencies conducting immigration enforcement, ICE & CBP, are sub-agencies of DHS. If they will be directed to screen individuals for eligibility and inform them of their potential eligibility, they are merely carrying out basic enforcement duties–just the as a police department in an overwhelmed district could instruct its officers to look at who is in jail, determine who is there for just minor violations, and let them know if they have any particular options.

I haven’t seen these memos, but the AP article cited by Vox merely states that ICE should try to identify who they “might be able to release”–which looks like it might mean “try to figure out who might fit in this low priority for detention”, which is far from an order to release everyone who might appear to be eligible. Indeed, even if ICE will be directed to release them from detention (to free up resources for other enforcement actions), they still retain the ability to pursue detention & removal against these same individuals. These decisions are made on a case-by-case basis. Sometimes they will see that a person may be eligible, and yet they will pursue enforcement against the person. That person can pursue a request for deferred action, though they are not entitled to it, even if eligible.

Further, even a grant of deferred action is only a snapshot of a decision at a particular moment–‘we are not seeking your removal at this particular instant.’ It is not a guaranteed, get-out-jail-free card. Someone granted deferred action may later be pursued for enforcement, and this does happen when, say, someone who has been granted deferred action later gets arrested.

Saying “DHS doesn’t want ICE to prosecute immigrants who qualify” is a poor way of stating what actually happens; DHS has set out clear enforcement priorities, without taking away the ability of agents to prosecute anyone in any category. It does not “run afoul” of any “standard” Lynch set. (Of course, it is also a stretch to imply that Lynch articulated a new ‘standard, which was just articulating the basic function of an enforcement agency.)

All of that is perfectly consistent with the OLC memos, which is pretty much the only venue in which DOJ even comes into play, save for lawsuits challenging policies or specific enforcement actions. So they are very much “on the same page” –despite what today’s example in bad immigration reporting may tell you.